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CRIMINOLOGY 


THE  MACMILLAN  COMPANY 

NEW  YORK    •   BOSTON  •   CHICAGO   •   DALLAS 
ATLANTA   •    SAN  FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON   •  BOMBAY   •  CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


CRIMINOLOGY 


BY 

MAURICE  PARMELEE,  Ph.D. 

AXJTHOR   OF   "the   SCIENCE   OF  HUMAN   BEHAVIOR,"    "POVERTY 
AND   SOCIAL  PROGRESS,"   "THE   PRINCIPLES   OF  AN- 
THROPOLOGY AND   SOCIOLOGY   IN  THEIR  RELA- 
TIONS TO  CRIMINAL  PROCEDURE,"  ETC. 


^sttt  fork 

THE  MACMILLAN  COMPANY 

1918 

All  rights  reserved 


I 
111? 


Copyright,  1918 

By  the  MACMILLAN  COMPANY 

Set  up  and  electxotyped.    Published  January,  1918 


PREFACE 

A  DECADE  has  passed  since  my  book  on  the  appHcations  of 
criminology  to  criminal  law  and  procedure  was  published.  It 
grew  out  of  several  years  of  experience  with  criminals  in  courts 
and  prisons  in  this  country,  and  criminological  research  in 
Europe.  At  that  time  it  was  my  intention  to  follow  that  book 
with  a  similar  one  on  the  applications  of  criminology  to  penal 
treatment. 

Since  then  the  biological,  psychological,  and  social  sciences 
upon  which  criminology  is  based  have  advanced  rapidly,  and 
much  work  has  been  done  within  the  criminological  field  itself. 
Hence  much  of  the  criminology  of  a  decade  or  more  ago  is 
already  obsolete.  I  have,  therefore,  abandoned  my  original 
plan,  and,  having  commenced  at  the  beginning  of  the  subject, 
have  attempted  a  comprehensive  survey  of  the  whole  field  of 
criminology. 

Much  of  the  criminological  writing  heretofore  has  been  more 
or  less  unilateral  in  its  character.  This  has  been  due  almost 
always  to  one-sided  knowledge,  sometimes  also  to  prejudices 
and  preconceived  notions.  For  example,  some  writers  have 
claimed  that  crime  is  due  entirely  to  social  causes,  others  have 
asserted  that  it  is  due  entirely  or  almost  entirely  to  the  traits 
of  the  criminal  himself. 

There  is  now  available  a  much  larger  fund  of  knowledge  from 
which  to  construct  a  criminological  theory  and  to  devize  a  prac- 
tical program.  Consequently  there  is  no  longer  any  excuse  for 
unilateral  theories  of  crime.  It  is  obvious  that  crime  cannot 
be  attributed  to  any  one  group  of  causes.  Furthermore,  it  is 
manifestly  impossible  to  measure  precisely  the  extent  to  which 
any  one  factor  gives  rise  to  crime.  Criminological  theory 
today  is  more  cautious  and  catholic,  and  does  less  violence  to 
the  facts.  It  is,  therefore,  more  accurate  though  less  pretentious 
than  some  of  the  older  criminology. 

The  present  work  is  a  companion  volume  to  my  Poverty  and 
Social  Progress.   In  these  two  books  I  have  attempted  to  describe 


VI  PREFACE 

the  two  greatest  of  social  evils,  namely,  poverty  and  crime. 
The  present  work  will,  I  hope,  prove  to  be  useful  to  many  of 
those  interested  in  and  working  with  the  problem  of  crime,  and 
as  a  textbook  for  college  and  university  courses  in  criminology. 
I  wish  to  thank  my  brother.  Dr.  J.  H.  Parmelee  of  the  Bureau 
of  Railway  Economics,  Washington,  for  reading  all  of  the  manu- 
script and  making  many  helpful  suggestions.  I  wish  also  to 
thank  Dr.  Joseph  A.  Hill,  Chief  of  the  Division  of  Revision 
and  Results  of  the  United  States  Bureau  of  the  Census,  Wash- 
ington, for  enabhng  me  to  inspect  some  of  the  proof  sheets  of 
the, Bureau's  report  on  Prisoners  and  Juvenile  Delinquents. 

MAURICE  PARMELEE. 

New  York  City, 
January,  1918. 


CONTENTS 

PART  I.    NATURE  AND  EVOLUTION  OF  CRIME 

CHAPTER  I 

The  Study  of  Criminology 

PAGE 

Application  of  science  to  the  study  of  crime — Criminology  a  hybrid 
science — The  sciences  used  in  criminological  research — The  prin- 
cipal branches  of  criminology — Sociological  significance  of  the  study 
of  crime 3 

CHAPTER  n 

THE  ORIGIN  Am)  EARLY  EVOLUTION  OF  CRIME 

Equivalents  of  crime  and  punishment  among  animals — ^The  limits  of  the 
analogy  between  man  and  the  animal  world — Alleged  equivalents 
of  crime  among  plants — ^Juridical  punishment  of  animals  by  men — 
The  beginnings  of  crime  among  men — Origin  of  crime  in  violations 
of  custom — Influence  of  magic  and  religion  upon  the  evolution  of 
crime — Influence  of  moral  ideas  upon  the  evolution  of  crime — The 
earliest  crimes:  treason;  witchcraft;  sacrilege;  incest;  poisoning; 
violations  of  the  hunting  rules 7 

CHAPTER  m 

CRIME  AND  SOCIAL  CONTROL 

The  struggle  for  existence — The  conflict  between  individual  and  social 
interests — Forms  of  social  control:  habit;  custom;  public  opinion; 
religion;  magic;  the  state,  government,  and  law — Social  utility  the 
criterion  for  social  control — ^The  limits  of  social  control — The  char- 
acteristic features  of  crime — The  definition  of  crime — Crimes 
created  by  religious,  despotic,  and  class  legislation — Vicious  acts 
stigmatized  as  criminal :  acts  penalized  in  order  to  stimulate  public 
opinion  against  them — ^The  distinctive  traits  of  the  criminal  class. .     25 


Vm  CONTENTS 

PART  II.    CRIMINOGENIC  FACTORS  IN  THE  ENVIRONMENT 
CHAPTER  IV 

PHYSICAL  ENVERONMENT — CLIMATE,   SEASON,  AND  THE   WEATHER 

PAGE 

Influence  of  the  physical  environment  in  general — Influence  of  topog- 
raphy and  the  nature  of  the  soil — Influence  of  climate,  the  seasons, 
and  the  weather — Meteorological  factors  mingled  with  cultural 
forces 43 

CHAPTER  V 

ITRBAN  AND  RURAL  CRIME  AND  VICE — DEMOGRAPHIC  FACTORS 

Influence  of  demographic  conditions — Apparent  preponderance  of  urban 
over  rural  criminality — Forces  which  accentuate  urban  criminality: 
the  concentration  of  population  increases  human  desires,  causes 
greater  conflict  of  individual  interests,  intensifies  the  struggle  for 
existence,  and  creates  more  opportunities  for  crime — The  organiza- 
tion of  vice  in  cities — Unorganized  vice  in  the  country — Influence 
of  the  growth  of  population  upon  crime 54 

CHAPTER  VI 

THE  ECONOMIC  BASIS  OF  CRIME 

The  economic  struggle  for  existence — Economic  changes  and  crime: 
seasonal  fluctuations;  the  trade  cycle;  prices;  wages — The  economic 
crimes:  crimes  against  property — The  economic  status  of  the  crim- 
inal— Economic  classification  of  criminals— ^Occupational  distribu- 
tion of  criminals — Professional  criminality — Influence  of  economic 
organization  upon  crime — Poverty  and  crime — The  standard  of 
living  and  crime — Wealth  and  crime  and  vice 67 

CHAPTER  Vn 

THE  POLITICAL  BASIS  OF  CRIME 

Political  organization  and  crime — Theories  of  government — Govern- 
mental responsibility  for  crime:  inefficient  and  corrupt  government 
— ^Influence  of  war  and  militarism  upon  crime 92 

CHAPTER  VIII 

THE  INFLUENCE  OF  CIVILIZATION  UPON  CRIME 

Religion  and  crime — Science  and  crime — Art  and  crime — The  press  and 

crime — The  advance  of  civilization  and  the  increase  of  crime 106 


CONTENTS  IX 

PART  III.    CRIMINAL  TRAITS  AND  TYPES 
CHAPTER  IX 

THE  ORGANIC   BASIS  OF  CRIMINALITY 

PAGE 

Anatomical  and  physiological  basis  of  criminality — The  theory  of  the 
born  criminal:  Lombroso — The  organic  basis  of  the  mental  factors 
in  criminality:  instinct;  feeling;  intelligence — Abnormalities  in  the 
neural  basis  of  mind — ^The  organic  causes  of  amentia — ^The  organic 
causes  of  dementia,  the  neuroses,  and  abnormal  appetites — Race 
and  criminality 127 

CHAPTER  X 

THE  MENTAL  BASIS  OF  CRIMINALITY 

Instinct — Habit — Feeling — Intelligence — ^Types  of  mental  abnormality: 
amentia;  dementia;  insanity;  the  neuroses;  abnormal  habits — The 
mental  inadaptability  of  the  criminal — Mental  defect  and  moral  de- 
ficiency: moral  imbecility  and  insanity — ^The  social  maladjustment 
of  the  criminal 142 

CHAPTER  XI 

CRIMINAL  AMENTS 

Characteristic  traits  of  criminal  aments — The  measurement  of  mental 
ability — ^The  extent  of  criminal  amentia 156 

CHAPTER  XII 

PSYCHOPATHIC  CRIMINALS 

The  borderline  between  amentia  and  normal  mentality — The  borderline 
between  amentia  and. dementia  and  insanity — Demented  and  in- 
sane criminals — The  influence  of  physiological  crises — Influence  of 
bad  habits,  the  neuroses,  traumatic  injuries,  abnormal  suggestibil- 
ity, mental  conflicts,  etc. — Summary  of  mental  traits  prevalent 
among  criminals 171 

CHAPTER  XIII 

THE  TYPES  OF  CRIMINALS 

Simple  classifications  of  criminals — Lombroso's  classification — Fern's 
classification — Classifications  derived  from  Lombroso  and  Ferri — 
Garofalo's  classification — Criticism  of  classifications  of  criminals — 
A  new  classification  of  criminal  types — Description  of  the  principal 
criminal  types — Distribution  of  criminals  among  the  criminal  types  186 


X  CONTENTS 

CHAPTER  XIV 

JUVENILE  CRIMINALITY 

PAGE 

Differences  between  childhood  and  adulthood — Extent  and  character  of 
juvenile  crimes — Poverty  and  juvenile  criminality — Parentage  and 
home  life:  broken  homes;  illegitimacy — Education  and  crime:  in- 
tellectual education;  moral  education;  vocational  training;  illiteracy 
and  criminality — Recreation  and  crime — Immigration  and  crime — 
Effect  of  imprisonment  upon  young  criminals 207 

CHAPTER  XV 

FEMALE  CRIMINALITY 

Apparent  preponderance  of  male  over  female  criminality — Extent  and 
character  of  female  crimes — Conjugal  condition  of  criminals — Dif- 
ferences between  men  and  women:  physical  inferiority  and  sym- 
pathetic nature  of  woman;  greater  variability  and  katabolism  of 
man — Lenient  treatment  of  female  criminals — Woman  shielded 
from  criminality  by  her  secluded  life — Extra-judicial  female  crimes 
— Prostitution  and  crime 231 

PART  IV.    CRIMINAL  JURISPRUDENCE 
CHAPTER  XVI 

THE  EVOLTJTION  OF  CRIMINAL  LAW  AND  THE  CLASSIFICATION  OF  CRIMES 

The  origin  of  criminal  law:  private  vengeance;  the  lex  talionis;  composi- 
tion— Influence  of  despotic,  class,  and  priestly  rule — Penal  codes — 
The  Roman  law — ^The  English  common  law — The  king's  peace — 
Crimes  classified  as  acts — Functional  classifications  of  crimes — A 
subjective  classification  of  crimes — Relation  between  the  criminal 
and  the  civil  law 251 

CHAPTER  XVII 

THE  FTJNCTIONS  OF  CRIMINAL  PROCEDURE 

The  procedure  of  accusation — ^The  procedure  of  investigation — English 
and  French  criminal  procedure — Combination  of  the  procedures  of 
accusation  and  investigation:  public  prosecution — The  reform  of 
criminal  procedure . • 272 

CHAPTER  XVIII 

THE  SCIENTIFIC  PRINCIPLES  OF  EVIDENCE 

Superstitious  methods  of  securing  prpof :  the  wager;  the  ordeal;  torture — 
The  English  law  of  evidence — Medical  jurisprudence:  the  evils  of 


CONTENTS  XI 

PAGE 
contradictory  medical  testimony;  the  training  of  medico-legal  ex- 
perts— Expert  testimony — Abolition  of  the  coroner's  ofhce — The 
oath — The  psychological  examination  of  witnesses:  the  causes  of 
erroneous  testimony;  the  psychological  expert — The  scientific  stage 
of  evidence 285 

CHAPTER  XIX 

PUBLIC  DEFENSE   IN  CRIMINAL  TRIALS 

The  injustice  of  private  defense — Public  defense  and  the  reform  of 
criminal  procedure — Abolition  of  the  plea  of  guilty — Significance  of 
public  defense  for  a  scientific  criminal  procedure :  the  individualiza- 
tion of  punishment;  the  education  and  selection  of  prosecutors,  de- 
fenders, and  judges — Public  defense  and  the  contradictory  debate — 
Free  civil  justice 301 

CHAPTER  XX 

THE  JUDICIAL  FUNCTION 

The  English  jury — The  characteristics  of  jurors — Criticisms  of  the  jury 
— The  functions  of  the  judge — The  training  and  appointment  of 
judges — The  control  of  the  judiciary 316 

CHAPTER  XXI 

THE  POLICE  FUNCTION 

The  police  and  the  army — Police  organization  and  administration:  na- 
tional and  local  poUce  control;  the  rural  police — ^The  functions  of  the 
police — The  training  and  selection  of  the  police  force — The  integrity 
of  the  police — Evil  influence  of  unenforceable  laws  against  vice — 
Homicide  in  the  United  States — Arrest — Preliminary  detention — 
Provisional  liberation — Indemnification  for  mistaken  detention 
and  prosecution 335 

PART  V.    PENOLOGY 
CHAPTER  XXII 

THE  ORIGIN  AND  EVOLUTION  OF  PUNISHMENT 

The  objects  of  punishment:vengeance;elimination;  restraint; deterrence; 
restitution;  reformation;  etc. — ^The  varieties  of  penalties — Imprison- 
ment— Transportation — Poetic  penalties — ^The  scope  of  punish- 
ment— The  severity  of  punishment:  influence  of  despotism,  war, 
magic,  and  religion — ^The  Inquisition — The  modem  humanitarian 
movement:  the  Renaissance;  the  industrial  revolution;  the  division 
of  labor;  modem  science 357 


XU  CONTENTS 

CHAPTER  XXIII 

THE  MORAL  BASIS  OF  PENAL  RESPONSIBILITY 

PAGE 

The  sanctions  of  punishment — The  nature  of  moral  phenemena — Moral 
concepts  and  social  control — ^The  theory  of  penal  responsibility — 
Free  will  and  determinism — The  psychological  basis  of  the  penal 
function:  anger;  vindictiveness;  fear — The  doctrine  of  partial  re- 
sponsibility— Penal  responsibility  and  the  individualization  of 
punishment 373 

CHAPTER  XXIV 

THE  SENTENCE  AND  THE  INDIVIDUALIZATION  OF  PUNISHMENT 

The  fundamental  principle  of  modern  criminal  law — ^The  types  of  in- 
dividualization: legal;  judicial;  administrative — ^The  criteria  of 
individualization:  the  crime;  the  criminal;  social  conditions;  the 
origin,  type,  and  intensity  of  the  criminality — Limitations  upon 
individualization — The  indefinite  sentence — Suspension  of  sentence 
and  probation — ^The  penal  treatment  of  the  young:  the  juvenile 
court — Judicial  and  administrative  individualization:  rehabilita- 
tion; periodical  revision  of  sentences 389 

CHAPTER  XXV 

THE  DEATH  PENALTY 

Arguments  for  and  against  capital  punishment — The  abolition  of  the 
death  penalty — Humanitarian  sentiment  and  the  death  penalty — 
The  death  penalty  and  political  crime — Methods  of  capital  punish- 
ment  410 

CHAPTER  XXVI 

THE  PRISON  SYSTEM 

The  types  of  prisons — The  cellular  prison — Development  of  the  person- 
ality of  the  prisoner — Prison  administrators — Solitary  and  social 
prison  life — Classification  of  prisoners — Prison  labor:  prison  main- 
tenance; wage  labor  for  prisoners — Evils  of  contract  labor — Educa- 
tional, religious,  and  recreational  facilities — Prison  discipline:  causes 
of  misconduct  in  prison;  malingering;  prison  penalties;  the  marking 
system — Self  government  in  prisons — Sex  problems  in  prisons — ^The 
prison  psychosis — The  prison  type 421 

CHAPTER  XXVn 

A  SCHEME  OF  PENAL  TREATMENT 

Prison  evils — Houses  of  detention — Local  jails — Reception  and  ob- 
servation prisons — Types  of  penal  institutions:  reformatories;  col- 


CONTENTS  XIU 

PAGE 

onies;  asylums;  penitentiaries — Release  and  after-care — Substitutes 
for  imprisonment — Corporal  punishment — Restitution — Steriliza- 
tion   441 

PART  VI.    CRIME  AND  SOCIAL  PROGRESS 
CHAPTER  XXVIII 

POLITICAL  AND  EVOLUTIVE  CRIMES  AND  CRIMINALS 

The  distinction  between  common  crimes  and  political  and  evolutive 
crimes — Evolutive  and  involutive  vice — Freedom  of  thought  and 
of  action — Political  freedom — Freedom  of  speech — Treason  and 
sedition — The  types  of  evolutive  and  political  criminals:  radicals 
and  conservatives;  the  pathological  type;  the  emotional  type;  the 
rational  type — ^The  instigation  of  political  and  evolutive  crimes — 
The  treatment  of  evolutive  crime 453 

CHAPTER  XXIX 

EVOLXTnVE  CRIME  AND   SOCIAL  READJUSTMENT 

The  significance  of  evolutive  crime — Religious  restrictions  upon  free- 
dom— Christianity  as  the  national  religion — ^The  laws  against  blas- 
phemy and  profanity — Sabbatarian  legislation — Religious  discrim- 
ination in  military  conscription — Sumptuary  and  economic  legis- 
lation— The  law  against  suicide — Repression  in  matters  of  sex  and 
reproduction — The  conservatism  of  the  human  mind — ^The 
prevention  of  evolutive  crime :  flexibility  in  the  organization  of  so- 
ciety— Evolutive  crime  and  democracy 469 

CHAPTER  XXX 

THE  PREVENTION   OF  CRIME 

Changes  in  the  nature  and  extent  of  crime — ^The  prevention  of  crime 
dependent  upon  the  prevention  of  other  social  evils — Individual 
and  social  criminogenic  factors — The  normal  life  as  a  preventive  of 
crime 489 

Appendix  A.  Prices  of  Cereals  and  Crimes  against  Property 493 

Appendix  B.  A  Biometric  Study  of  the  English  Convict 495 

Partial  Bibliography 503 

Index 515 


PART  I 
NATURE  AND  EVOLUTION  OF  CRIME 


CRIMINOLOGY 

CHAPTER  I 
THE  STUDY  OF  CRIMINOLOGY 

Application  of  science  to  the  study  of  crime  —  Criminology  a  hybrid  science 
—  The  sciences  used  in  criminological  research  —  The  principal 
branches  of  criminology  —  Sociological  significance  of  the  study  of 


Few  subjects  arouse  so  universal  or  so  deep  an  interest  as 
the  study  of  crime.  This  interest  is  due  in  the  main  to  the 
adventurous  and  romantic  traits  in  human  nature.  Criminal 
conduct  appeals  to  these  human  traits  because  it  is  regarded 
as  being  a  spontaneous  response  to  impulse,  and  even  the  most 
prosaic  and  conventional  individual  chafes  to  a  certain  extent 
under  the  restrictions  of  law  and  morality.  If  this  interest  is 
not  so  great  as  to  become  morbid,  it  may  have  great  utility, 
because  crime  is  both  a  serious  practical  problem  and  an  im- 
portant subject  for  scientific  study. 

During  the  past  century  the  extent  to  which  scientific  methods 
have  been  applied  to  the  study  of  human  and  social  phenomena 
has  increased  greatly.  To  be  sure,  there  still  is  much  opposi- 
tion to  the  scientific  study  of  these  phenomena.  Some  of  this 
opposition  arises  from  anthropocentric  notions  with  regard 
to  the  exalted  position  of  man  in  the  universe.  Some  of  it  arises 
from  anti-scientific  theological  dogmas.  Some  of  it  is  due  to 
propagandists  who  are  eager  to  push  through  certain  social 
reforms,  and  are  therefore  unwilling  to  await  the  results  of 
careful  and  cautious  scientific  investigation.  All  of  this  opposi- 
tion creates  a  prejudice  against  attributing  human  conduct 
to  natural  causes.  But  slowly  this  opposition  is  being  over- 
come, and  crime  will  before  long  be  regarded  as  a  purely  natural 
phenomenon. 


4  CRIMINOLOGY 

Special  attention  has  been  devoted  to  the  study  of  crime 
and  the  criminal  since  the  remote  past.  The  early  pseudo- 
sciences  of  physiognomy  and  phrenology  attempted  to  describe 
the  traits  of  the  criminal.  At  the  present  time  many  sciences 
are  contributing  to  this  study.  From  the  laboratories  of  these 
sciences,  from  the  researches  of  scientific  workers,  from  statis- 
tical investigations  of  various  kinds  are  to  be  derived  the  facts 
for  the  study  of  crime  and  the  criminal.  These  facts  are  not 
adequate  as  yet  for  a  final  synthesis,  but  they  nevertheless 
have  great  scientific  and  practical  value. 

Criminology  is  not  one  of  the  fundamental  sciences,  but  is  a 
hybrid  product  of  several  sciences.  Zoology,  anthropology, 
history,  and  sociology  contribute  to  the  description  of  the  na- 
ture, origin,  and  evolution  of  crime.  Meteorology,  demography, 
and  the  special  social  sciences,  such  as  economics,  politics,  etc., 
contribute  to  the  analysis  of  the  environmental  causes  of  crime. 
Anatomy,  physiology,  psychology,  and  psychiatry  furnish  the 
facts  and  methods  for  the  study  of  the  traits  and  types  of  crim- 
inals. Comparative  jurisprudence  and  law  contribute  to  the 
study  of  the  penal  treatment  of  crime  and  the  criminal. 

Consequently,  many  scientific  methods  are  applied  in  crim- 
inological research.  Zoological,  anthropological,  and  historical 
methods  are  used  in  tracing  the  evolution  of  crime  from  its 
prototypes  among  animals  to  the  forms  it  takes  in  civilized 
society. 

Meteorological  methods  are  utilized  in  studying  the  influence 
of  the  weather,  climate,  season,  topography,  and  other  telluric 
forces  upon  criminal  conduct.  These  factors  of  the  external 
physical  environment  are  of  fundamental  importance  in  any 
study  of  conduct.  Demographic  methods  are  used  in  studying 
the  influence  of  the  density  and  distribution  of  the  population, 
of  the  increase  or  decrease  of  population,  and  of  migrations  of 
population. 

The  sociological  method  involves  a  study  of  the  numerous 
social  factors  which  cause  criminal  conduct  and  play  a  part  in 
making  criminals  and  criminal  types.  Among  these  factors  are 
the  economic,  political,  religious,  moral,  and  artistic  factors. 
Closely  connected  with  the  sociological  method  is  the  statistical 
method,  because  it  is  frequently  used  in  sociological  investiga- 
tion.   But  the  statistical  method  may  be  used  to  aid  any  of  the 


THE   STUDY  OF  CRIMINOLOGY  5 

other  methods,  so  that  it  must  be  regarded  as  ancillary  to  all  of 
these  methods. 

The  anatomical  method  brings  to  light  abnormalities  and 
malformatloiTs  of  the  external  structure  of  the  organism  which 
in  some  cases  are  of  significance  with  respect  to  criminal  conduct. 
It  reveals  defects  and  derangements  of  the  internal  organs  which 
frequently  have  a  far-reaching  influence  for  evil  upon  conduct. 
It  describes  the  structure  of  the  nervous  system,  a  knowledge  of 
which  is  absolutely  necessary  for  the  study  of  mental  traits. 

The  physiological  method  studies  the  organic  processes  in  the 
viscera  and  elsewhere  in  the  body,  and  brings  to  light  functional 
derangements  which  frequently  have  an  injurious  effect  upon 
conduct.  The  clinico-pathological  method  makes  possible  an 
intensive  study  of  the  defective,  abnormal,  and  deranged  condi- 
tions revealed  by  the  anatomical  and  physiological  methods. 

The  psychological  method,  supported  by  the  anatomical, 
physiological,  and  clinico-pathological  methods,  studies  the 
mental  traits  and  processes  in  order  to  ascertain  in  what  mental 
states,  whether  normal  or  abnormal,  criminal  acts  are  com- 
mitted. This  method  is  very  helpful  in  devizing  a  classification 
of  criminal  types,  because  criminal  conduct,  like  all  forms  of 
conduct,  is  determined  primarily  by  these  mental  states.  Inas- 
much as  many  of  the  mental  states  which  give  rise  to  criminal 
conduct  are  abnormal,  psychiatry  plays  an  important  part  in  the 
application  of  the  psychological  method. 

In  this  book  we  are  to  make  a  more  or  less  comprehensive 
survey  of  criminology.  The  topics  to  be  treated  in  the  succeed- 
ing chapters  may  be  classified  under  the  following  heads,  which 
indicate  the  principal  branches  of  criminological  science:  — 

1.  Theory  of  the  nature  and  evolution  of  crime. 

2.  Criminal  sociology. 

3.  Criminal  anthropology. 

4.  Criminal  psychology. 

5.  Criminal  jurisprudence. 

6.  Penology. 

The  study  of  crime  has  great  sociological  significance.  It 
furnishes  one  of  the  most  striking  illustrations  of  the  relation 
between  the  individual  and  society,  and  the  conflict  between 
individual  and  social  interests.  The  penal  treatment  of  the 
criminal  is  the  most  drastic  form  of  social  repression,  and 


6  CRIMINOLOGY 

criminology  is  fundamentally  a  study  of  social  control.  Hence 
it  is  that  criminology  and  ethics  are  closely  related,  and  the 
study  of  crime  involves  the  discussion  of  numerous  ethical 
problems  of  great  social  importance  and  scientific  interest. 

Crime  is  ordinarily  regarded  as  a  pathological  and  abnormal 
form  of  conduct.  The  study  of  the  abnormal  is  always  of 
significance  not  only  for  its  own  sake,  but  also  because  of  the 
light  it  throws  upon  the  normal  as  well.  It  is  impossible  to 
recognize  and  understand  fully  the  normal  until  the  abnormal 
variations  have  been  studied.  So  that  the  study  of  criminal 
conduct  is  instructive  with  respect  to  normal  human  conduct. 
It  is  frequently  difficult  to  ascertain  what  is  normal  conduct,  and 
in  dealing  with  this  problem  I  shall  apply  biological,  psycho- 
logical, social,  and  ethical  norms. 


CHAPTER  II 
THE  ORIGIN  AND  EARLY  EVOLUTION  OF  CRIME 

Equivalents  of  crime  and  punishment  among  animals  —  The  limits  of  the 
analogy  between  man  and  the  animal  world  —  Alleged  equivalents  of 
crime  among  plants  —  Juridical  punishment  of  animals  by  men  —  The 
beginnings  of  crime  among  men  —  Origin  of  crime  in  violations  of  cus- 
tom —  Influence  of  magic  and  religion  upon  the  evolution  of  crime  — 
Influence  of  moral  ideas  upon  the  evolution  of  crime  —  The  earliest 
crimes:  treason,  witchcraft,  sacrilege,  incest,  poisoning,  violations  of 
the  hunting  rules. 

The  equivalents  or  analogues  of  crime  are  to  be  found  among 
animals  other  than  man.  Some  criminologists,  indeed,  have 
sought  for  these  equivalents  in  the  plant  world  as  well.  The 
search  for  equivalents  of  crime  outside  of  the  human  world  is 
justified.  Crime  is  a  natural  phenomenon,  and  is,  therefore, 
closely  related  to  other  natural  phenomena.  In  accordance  with 
tEe  theory  of  evolution  we  are  constrained  to  believe  that  it  has 
evolved  out  of  other  phenomena,  and  must  seek  its  origin  in 
th^  other  phenomena. 

Equivalents  of  Crime  and  Punishment   Among  Animals 

The  mammals  and  birds  share  many  of  the  instincts  and  feel- 
ings possessed  by  man.  The  same  is  true  to  a  less  degree  of  the 
remainder  of  the  vertebrates;  while  some  of  the  invertebrates, 
such  as  the  insects,  probably  possess  at  least  a  few  of  these  in- 
stincts, and  possibly  a  few  of  these  feelings,  though  the  last 
surmise  is  doubtful.  Just  as  in  man  the  social  instincts  and 
feelings,  partly  under  the  direction  of  the  intellect,  have  given 
rise  to  human  society,  in  similar  fashion  the  corresponding  in- 
stincts and  feelings  have  given  rise  to  a  social  manner  of  life 
among  many  of  these  animal  species.  In  each  of  these  animal 
societies  habits  and  customs  arise  which  in  the  long  run  aid  the 
survival  of  the  species.  Consequently,  acts  which  are  contrary 
to  these  habits  and  customs  will  usually  be  injurious  to  the 


8  CRIMINOLOGY 

species,  and  will  be  reacted  against  by  the  members  of  the 
species. 

Many  such  acts  and  the  reactions  against  them  have  been 
observed  among  animals.  Animals  have  been  known  to  kill, 
to  steal,  to  maltreat  each  other,  and  in  many  other  ways  to 
injure  their  congeners  and  their  species.  Furthermore,  such 
acts  have  been  traced  to  abnormal  traits  of  the  offenders  which 
have  apparently  caused  them.  Just  as  in  man  aberrations  of 
the  instinctive,  affective,  and  intellectual  traits  and  the  physical 
abnormalities  which  underlie  these  aberrations  frequently  lead 
to  anti-social  conduct;  in  similar  fashion  like  aberrations  and 
abnormalities  lead  to  corresponding  conduct  on  the  part  of 
animals.  Many  cases  have  been  described  where  malformation 
of  the  brain,  abnormalities  of  the  viscera,  nervous  disorders, 
etc.,  have  given  rise  to  aberrant  conduct.^ 

Equivalents  of  punishment  also  are  found  among  animals. 
When  acts  contrary  to  the  habits  and  customs  of  the  species  are 
committed,  members  of  the  species  have  in  many  cases  been 
observed  to  display  anger  and  the  desire  to  revenge  which  have 
led  them  to  inflict  pain  upon  the  offending  individual,  and  to 
drive  the  offender  away  from  the  group,  or  even  to  kill  the 
offender. 

I  have  not  the  space  to  describe  in  detail  these  equivalents 
or  analogues  of  crime  and  of  punishment  among  animals.  But 
while  this  analogy  is  very  significant,  and  should  therefore  be 

^  Lacassagne  has  classified  the  causes  of  aberrant  conduct  among  animals 
according  to  the  traits  whose  aberrations  give  rise  to  such  conduct.  He 
says  that  they  are  due  to  aberrations  of  (i)  the  nutritive  instinct,  (2)  the 
sexual  instinct,  (3)  maternal  love,  (4)  the  destructive  instinct,  (5)  the  in- 
stinct of  vanity,  (6)  the  social  instincts.  (A.  Lacassagne,  De  la  criminality 
chez  les  animaux,  in  the  Revue  scientifique,  Vol.  Ill,  No.  2,  Jan.  14,  1882, 
pp.  34-42.) 

To  quote  his  own  words,  aberrant  conduct  among  animals  is  due  to  "the 
exaggeration  of  these  instincts,  exaggerations  which  are  harmful  to  other 
animals  of  the  same  species,  which  manifest  themselves  by  special  kinds 
of  acts  which  are  called  offenses  or  crimes  in  human  societies."  Such' con- 
duct is  due  sometimes  to  exaggerations  of  some  of  these  traits,  but  in  other 
cases  is  due  to  the  excessive  weakness  of  the  same  or  of  other  traits.  It 
may  be  questioned  whether  some  of  the  instincts  mentioned  by  Lacassagne 
actually  exist,  as,  for  example,  the  destructive  instinct  and  the  instinct  of 
vanity.  However,  his  classification  gives  some  idea  of  the  kinds  of  aberra- 
tions which  give  rise  to  these  equivalents  of  crime  among  animals. 


THE   ORIGIN  AND   EARLY  EVOLUTION   OF   CRIME  9 

pointed  out  in  any  study  of  crime,  it  is  important  that  the 
analogy  should  not  be  carried  too  far,  as  has  been  done  by  some 
writers.  There  are  differences  between  man  and  the  animal 
world  which  place  limitations  upon  the  analogy. 

To  begin  with,  public  opinion  and  moral  ideas  are  not  to  be 
found  among  animals,  or  if  found  at  all  only  in  a  most  rudimen- 
tary form;  whereas  these  phenomena  are  fully  developed  among 
men,  and  play  an  important  part  in  determining  the  character  of 
crime.  Neither  public  opinion  nor  moral  ideas  can  exist  without 
a  well-developed  means  of  communication  such  as  speech,  and 
man  is  the  only  animal  which  possesses  the  faculty  of  speech.  In 
the  second  place,  no  animal  other  than  man  possesses  religious 
beliefs  or  magical  ideas,  and  both  of  these  have  had  much  in- 
fluence upon  crime  in  human  social  evolution.  In  the  third 
place,  no  animal  other  than  man  has  developed  the  state, 
government,  and  law,  and  these  political  institutions  largely  de- 
termine the  nature  of  crime  in  the  higher  stages  of  social  evo- 
lution. 

Because  of  these  differences  there  can  be  no  strict  analogy 
between  "crime"  among  animals  and  crime  among  men.  And 
yet  some  writers  have  tried  to  draw  such  a  strict  analogy.  For 
example,  one  writer  asserts  that  courts  of  justice  and  criminal 
procedure  are  to  be  found  among  animals:  —  "The  instances 
recorded  of  animals  holding  courts  of  justice  and  laying  penalties 
upon  offenders  are  too  numerous  and  well  authenticated  to 
admit  of  any  doubt.  This  kind  of  criminal  procedure  has  been 
observed  particularly  among  rooks,  ravens,  storks,  flamingoes, 
martins,  sparrows,  and  occasionally  among  some  gregarious 
quadrupeds.  It  is  as  clearly  established  as  human  testimony  can 
establish  anything  that  these  creatures  have  a  lively  sense  of 
what  is  lawful  or  allowable  in  the  conduct  of  the  individual,  so 
far  as  it  may  affect  the  character  of  the  flock  or  herd,  and  are 
quick  to  resent  and  punish  any  act  of  a  single  member  that  may 
disgrace  or  injure  the  community  to  which  he  belongs."  ^  This 
writer  is  interpreting  in  altogether  too  anthropomorphic  a 
fashion  the  assemblies  of  gregarious  birds  at  some  of  which 
offenders  are  punished  spontaneously,  but  without  the  formal 
action  of  law  and  justice.  -' 

'  E.  P.  Evans,  EvoluHoi^  Ethics  and  Animal  Psychology,  New  York, 
1898,  p.  230. 


lO  CRIMINOLOGY 

Some  writers  have  gone  so  far  as  to  extend  the  concept  of 
crime  even  to  the  plant  world.  For  example,  Lombroso  con- 
sidered the  habits  of  insectivorous  plants  as  equivalents  of  crime 
in  the  plant  world. ^  But  this  is  manifestly  an  erroneous  inter- 
pretation. In  the  first  place,  the  differences  between  the  traits 
of  plants  and  of  animals  are  so  great  as  to  stretch  the  analogy 
altogether  too  far.  There  is  little  if  any  reason  to  think  that 
plants  have  either  instincts,  or  feelings,  or  intelligence.  Such 
being  the  case  we  can  hardly  speak  of  the  "behavior"  of  plants 
in  any  sense  which  is  at  all  comparable  with  the  behavior  of 
animals.  In  the  second  place,  it  is  hardly  possible  to  introduce 
the  idea  of  crime  with  respect  to  the  actions  of  one  species  upon 
another  species,  especially  when  the  two  species  belong  to  en- 
tirely different  realms  of  the  organic  world.  So  that  the  so- 
called  "murders"  of  insects  by  insectivorous  plants  mentioned 
by  Lombroso  are  "crimes"  much  less  than  the  killing  of  animals 
by  man  for  food  or  for  amusement. 

Juridical  Punishment  of  Animals  by  Men 

I  have  now  stated  the  only  scientific  sense  in  which  crime 
or  the  analogue  of  crime  can  be  said  to  exist  outside  of  mankind. 
But  a  popular  notion  of  the  criminality  of  animals  has  been 
prevalent  in  the  past  and  still  exists  today,  which  should  be 
noted  in  passing.  This  belief  is  that  animals  are  morally  re- 
sponsible for  their  acts,  and  that  consequently  when  an  animal 
does  injury  to  human  beings  it  should  be  ptmished  in  much  the 
same  way  as  if  it  were  a  himian  being.  As  a  result  of  this  belief, 
during  the  Middle  Ages  and  earlier  many  animals  were  tried  and 
convicted  for  alleged  crimes  against  hioman  beings.^  Various 
penalties  were  inflicted,  the  most  frequent  one  perhaps  being 
capital  punishment.  Curiously  enough,  this  notion  was  some- 
times extended  to  the  plant  world  as  well,  so  that  plants  also 
were  held  morally  responsible  for  their  alleged  acts  towards  man. 
For  example,  Jesus  Christ  was  apparently  laboring  under  this 

^  C.  Lombroso,  L'Jiomme  criminel,  Paris,  1895,  Vol.  I,  Chap.  i. 

^  For  an  account  of  many  such  cases  see,  E.  P.  Evans,  The  Criminal  Pros- 
ecution and  Capital  Punishment  of  Animals,  London,  1906.  See  also,  E. 
Westermarck,  The  Origin  and  Development  of  the  Moral  Ideas,  London,  1906, 
Vol.  T,  Chap.  10. 


THE   ORIGIN  AND  EARLY  EVOLUTION   OF   CRIME  II 

delusion  when  he  cursed  the  fruitless  fig  tree  of  Bethany  for  not 
furnishing  food  to  mankind.  ^ 

Several  things  should  be  noted  with  respect  to  this  notion. 
In  the  first  place,  it  is  evident  that  this  belief  arises  out  of  an 
anthropomorphic  interpretation  of  the  animal  and  plant  worlds. 
Man  has  assumed  that  animals  and  even  plants  think,  and  feel, 
and  will  like  himself,  and  that  therefore  their  acts  should  be 
treated  like  the  acts  of  hvmian  beings.  In  the  second  place, 
in  most  if  not  all  of  these  cases  the  animals  were  punished  for 
their  offenses  against  men.  In  fact,  I  do  not  know  of  a  single 
case  where  an  animal  was  punished  by  judicial  process  for  an 
offense  committed  against  a  congener  or  a  member  of  any  other 
non-human  species.  While  this  may  have  been  desirable  from 
the  human  point  of  view,  it  was  hardly  fair  to  these  animals. 
Man  does  not  hesitate  to  kill  animals  in  order  to  secure  food, 
and  for  other  hiunan  purposes.  Furthermore,  the  great  major- 
ity of  himian  crimes  are  offenses  committed  against  human 
beings,  and  the  number  of  offenses  against  animals  recognized 
by  the  law  are  very  few.  So  that  the  scales  of  human  justice 
have  been  heavily  overweighted  in  the  interest  of  himian  welfare 
in  man's  attempts  to  hold  animals  morally  and  penally  respon- 
sible for  their  acts. 

In  the  last  place,  a  distinction  should  be  noted  .between  two 
kinds  of  judicial  processes  against  animals.  The  first  kind  of 
process  is  the  one  I  have  so  far  been  describing,  namely,  the 
trial  and  condemnation  of  individual  animals  for  offenses  which 

^  Some  of  the  Christian  apologists  have  interpreted  this  tale  as  indicating 
that  Jesus  regarded  the  tree  as  morally  responsible,  and  therefore  giiilty  of 
a  delinquency.  The  accounts  given  of  this  alleged  occurrence  in  the  gospels 
of  Matthew  and  of  Mark  suggest  that  Jesus  uttered  his  curse  in  an  access  of 
pettish  rage  because  he  was  deprived  of  his  breakfast  when  hungry.  "  Now 
in  the  morning  as  he  returned  into  the  city,  he  hungered.  And  when  he 
saw  a  fig  tree  in  the  way,  he  came  to  it,  and  found  nothing  thereon,  but 
leaves  only,  and  said  unto  it,  Let  no  fruit  grow  on  thee  henceforward  for  ever. 
And  presently  the  fig  tree  withered  away."  (S.  Matthew,  XXI,  i8,  19.) 
"And  on  the  morrow,  when  they  were  come  from  Bethany,  he  was  hungry: 
And  seeing  a  fig  tree  afar  off  having  leaves,  he  came,  if  haply  he  might  find 
any  thing  thereon:  and  when  he  came  to  it,  he  found  nothing  but  leaves; 
for  the  time  of  figs  was  not  yet.  And  Jesus  answered  and  said  unto  it.  No 
man  eat  fruit  of  thee  hereafter  for  ever."  (S.  Mark,  XI,  12-14.)  This  is 
like  the  child  or  savage  who  trips  over  a  stone,  and  then  strikes  it  in  anger 
because  it  has  hurt  him. 


12  CRIMINOLOGY 

they  have  committed  against  human  beings.  In  these  cases 
the  guilty  animals  are  apprehended  and  the  penalties  are  in- 
flicted directly  upon  them.  In  the  second  kind  of  process  a 
whole  species  which  is  doing  injury  to  mankind,  such  as  preda- 
tory carnivores,  thieving  birds,  noxious  insects,  etc.,  is  tried, 
and  if  condemned  measures  are  taken  against  it  which  may  be 
regarded  either  as  protective  or  as  punitive,  or  .possibly  as  both. 
At  first  these  measures  were  probably  magical  practises  directed 
towards  destroying  or  driving  away  the  offending  species.  Later 
these  measures  became  religious  in  their  character  in  the  form 
of  anathemas  and  curses  uttered  against  the  offending  animals. 
In  this  kind  of  judicial  process  it  is  possible  to  inflict  the  penal- 
ties prescribed  directly  upon  the  culprits  in  very  few  if  any  of 
the  cases,  so  that  the  efficacy  of  the  magical  and  religious  meas- 
ures have  to  be  relied  upon  to  attain  this  end.^ 


^  Cf.  Karl  von  Amira,  Thierstrafen  und  Thierprocesse,  Innsbruck,  1891. 
The  following  statement  by  Evans  is  of  interest  in  this  connection: 
"Von  Amira  draws  a  sharp  line  of  technical  distinction  between  Thier- 
strafen and  Thierprocesse;  the  former  were  capital  punishments  inflicted 
by  secular  tribunals  upon  pigs,  cows,  horses,  and  other  domestic  animals 
as  a  penalty  for  homicide;  the  latter  were  judicial  proceedings  instituted 
by  ecclesiastical  courts  against  rats,  mice,  locusts,  weevils,  and  other  vermin 
in  order  to  prevent  them  from  devouring  the  crops,  and  to  expel  them  from 
orchards,  vineyards,  and  cultivated  fields  by  means  of  exorcism  and  excom- 
munication. Animals,  which  were  in  the  service  of  man,  could  be  arrested, 
tried,  convicted  and  executed,  like  any  other  members  of  his  household;  it 
was,  therefore,  not  necessary  to  summon  them  to  appear  in  court  at  a  speci- 
fied time  to  answer  for  their  conduct,  and  thus  make  them,  in  the  strict 
sense  of  the  term,  a  party  to  the  prosecution,  for  the  sheriff  had  already 
taken  them  in  charge  and  consigned  them  to  the  custody  of  the  jailer.  In- 
sects and  rodents,  on  the  other  hand,  which  were  not  subject  to  human  con- 
trol and  could  not  be  seized  and  imprisoned  by  the  civil  authorities,  de- 
manded the  intervention  of  the  Church  and  the  exercise  of  its  supernatural 
functions  for  the  purpose  of  compelling  them  to  desist  from  their  devasta- 
tions and  to  retire  from  all  places  devoted  to  the  production  of  human  sus- 
tenance. The  only  feasible  method  of  staying  the  ravages  of  these  swarms 
of  noxious  creatures  was  to  restort  to  'metaphysical  aid'  and  to  expel  or  to 
exterminate  them  by  sacerdotal  conjuring  and  cursing.  The  fact  that  it  was 
customary  to  catch  several  specimens  of  the  culprits  and  bring  them  before 
the  seat  of  justice,  and  there  solemnly  put  them  to  death  while  the  anathema 
was  being  pronounced,  proves  that  this  smnmary  manner  of  dealing  would 
have  been  applied  to  the  whole  of  them,  had  it  been  possible  to  do  so." 
(E.  P.  Evans,  The  Criminal  Prosecution  and  Capital  Punishment  of  Animals, 
London,  1906,  pp.  2-3.) 


the  origin  and  early  evolution  of  crime         i3 
The  Beginnings  of  Crime  Among  Men 

There  is  no  historical  account  of  the  beginnings  of  crime 
among  men,  since  they  took  place  in  the  dim  prehistoric  past. 
Nevertheless  there  are  sources  of  information  from  which  we 
can  derive  facts  of  great  significance  with  respect  to  this  subject. 

In  the  first  place,  the  first  men,  like  the  men  of  today,  be- 
longed to  the  order  of  primates  and  the  class  of  mammals. 
Consequently  they  shared  the  characteristic  traits  of  the  mam- 
malian world.  In  other  words,  they  had  much  the  same  in- 
stincts and  emotions  as  the  remainder  of  the  mammalian  world, 
and  especially  as  the  mammals  most  closely  related  to  them, 
such  as  the  other  primates.  These  men  probably  differed  from 
other  mammals  mainly  with  respect  to  intelligence,  the  superior 
excellence  of  the  human  intellect  being  man's  most  distinctive 
trait. 

Possessing  these  mammalian  traits,  these  first  men  experi- 
enced anger,  sympathy,  sexual  passion,  parental  love,  and  all 
the  otlier  instinctive  impulses  and  feelings  which  play  an  im- 
portant part  in  determining  human  conduct.  Their  social 
tendencies  led  them  to  form  social  groups.  As  individuals  they 
formed  habits.  As  social  groups  they  evolved  customs,  and 
violations  of  these  customs  doubtless  aroused  the  character- 
istic reactions  from  the  group  which  among  animals  I  have 
called  the  equivalents  or  analogues  of  crime.  When  speech 
developed,  it  became  more  feasible  to  have  public  opinion  and 
then  moral  ideas  with  respect  to  conduct.  Furthermore,  prob- 
ably as  a  result  of  the  stimulus  to  thinking  from  the  interchange 
of  ideas  made  possible  by  speech,  magical  and  religious  ideas 
began  to  develop  which  have  also  had  a  vast  influence  upon 
human  conduct. 

In  the  second  place,  numerous  studies  have  been  made  of 
commimities  of  a  low  order  of  culture,  and  there  is  reason  to 
believe  that  the  conditions  found  in  these  communities  repro- 
duce in  a  measure,  or,  should  we  say,  perpetuate,  the  conditions 
which  obtained  in  the  early  stages  of  human  social  evolution. 
Consequently,  the  crimes,  or  nearest  equivalents  to  crimes, 
found  in  these  primitive  human  groups  probably  indicate  fairly 
well  what  were  the  first  crimes,  or  analogues  of  crimes,  among 
men. 


14  criminology 

Origin  of  Crime  in  Violations  of  Custom 

All  of  these  studies  show  that  violations  of  the  customs  of 
the  community  constituted  some  if  not  all  of  the  primitive 
I  crimes.  "In  primitive  society  custom  stands  for  law,  and  even 
i  where  social  organisation  has  made  some  progress  it  may  still 
remain  the  sole  rule  for  conduct."  ^  In  most  cases  the  laws 
of  the  higher  stages  of  social  evolution  have  developed  out  of 
the  customs  of  the  community,  and  even  down  to  the  present 
day  in  the  most  cultured  communities  changes  in  the  laws  are 
determined  mainly  by  changes  in  the  customs.^    Indeed,  many 

1  E.  Westermarck,  op.  ciL,  Vol.  I,  p.  i6i. 

2  "The  laws  themselves,  in  fact,  command  obedience  more  as  customs 
than  as  laws.  A  rule  of  conduct  which,  from  one  point  of  view,  is  a  law,  is 
in  most  cases,  from  another  point  of  view,  a  custom;  for,  as  Hegel  remarks, 
'the  valid  laws  of  a  nation,  when  written  and  collected,  do  not  cease  to  be 
customs.'  There  are  instances  of  laws  that  were  never  published,  the  knowl- 
edge and  administration  of  which  belonged  to  a  privileged  class,  and  which 
were  nevertheless  respected  and  obeyed.  And  among  ourselves  the  ordinary 
citizen  stands  in  no  need  of  studying  the  laws  under  which  he  lives,  custom 
being  generally  the  safe  guiding  star  of  his  conduct.  Custom,  as  Bacon 
said,  is  'the  principal  magistrate  of  man's  life,'  or,  as  the  ancients  put  it, 
'the  king  of  all  men.' 

"  Many  laws  were  customs  before  they  became  laws.  Ancient  customs  lie 
at  the  foundation  of  all  Aryan  lawbooks.  Mr.  Mayne  is  of  opinion  that 
Hindu  law  is  based  upon  customs  which  existed  even  prior  to  and  independ- 
ent of  Brahmanism.  The  Greek  word  v6fios  means  both  custom  and  law, 
and  this  combination  of  meanings  was  not  owing  to  poverty  of  language, 
but  to  the  deep-rooted  idea  of  the  Greek  people  that  law  is,  and  ought  to 
be,  nothing  more  and  nothing  less  than  the  outcome  of  national  custom. 
A  great  part  of  the  Roman  law  was  founded  on  the  mores  majorum;  in  the 
Institutes  of  Justinian,  it  is  expressly  said  that  'long  prevailing  customs, 
being  sanctioned  by  the  consent  of  those  who  use  them,  assume  the  nature 
of  Laws.'  The  case  was  similar  with  the  ancient  laws  of  the  Teutons  and 
Irish."    (E.  Westermarck,  op.  cit.,  Vol.  I,  pp.  164-5.) 

Chapter  VII  in  Westermarck,  entitled  "Customs  and  Laws  as  Expres- 
sions of  Moral  Ideas,"  gives  an  excellent  discussion  of  this  subject.  It 
should,  however,  be  noted  that  this  title  suggests  that  moral  ideas  always 
precede  customs.  Obviously  this  could  not  be  so,  and  many  customs  must 
have  existed  long  before  man  was  capable  of  possessing  moral  ideas.  The 
explanation  of  the  title  of  this  chapter  probably  is  that  inasmuch  as  Wester- 
marck believes  that  morality  can  be  traced  back  to  certain  so-called  "moral 
emotions,"  morality  in  this  affective  form  is  to  be  found  back  of  most  if 
not  all  customs.  If  this  is  a  correct  explanation  of  this  title,  the  use  of  the 
term  "moral  ideas"  in  this  title  is  in  part  incorrect.  I  shall  criticize  Wester- 
marck's  theory  of  the  "moral  emotions''  in  Chapter  XXIII. 


THE   ORIGIN  AND  EARLY   EVOLUTION   OF   CRIME  1 5 

customs  will  always  exist  in  every  human  group,  and  there  will 
always  be  some  tendency  on  the  part  of  the  community  to  react 
in  a  hostile  fashion  to  violations  of  these  customs.  However, 
there  has  already  been  a  good  deal  of  variation  as  to  the  number 
of  customs  which  come  to  be  sanctioned  by  moral  ideas,  re- 
ligious beliefs,  and  magical  practises,  violations  of  which  are 
punished  by  the  group  as  a  whole.  It  is  possible  that  in  the 
future  a  smaller  number  of  customs  will  receive  this  sanction, 
and  that  consequently  only  personal  and  not  social  reactions 
will  be  possible  against  them. 

The  primary  causes  of  the  customs  of  any  group  are  to  be 
found  in  the  innate  traits  of  human  beings  and  in  the  features 
of  the  environment.  The  customary  relations  between  the 
sexes,  between  parents  and  offspring,  etc.,  are  determined  in 
large  part  by  instincts  and  feelings.  The  food  customs  are 
determined  to  a  large  extent  by  the  environment.  If  the  avail- 
able food  is  in  the  form  of  wild  beasts,  various  hunting  customs 
arise.  If  the  environment  causes  frugivorous  habits,  customs 
with  respect  to  the  gathering  and  the  apportioning  of  the  fruit 
arise. 

Influence  of  Magic  and  Religion  upon  the 
Evolution  of  Crime 

But  secondary  factors  make  their  appearance  when,  largely 
as  a  result  of  the  evolution  of  speech,  religious  and  magical 
ideas  and  practises  and  moral  ideas  develop.  Probably  rather 
early  in  his  career  upon  this  planet  man  began  to  think  about 
the  nature  and  causes  of  his  environment  and  of  himself.  His 
thinking  was  not  necessarily  for  purposes  of  philosophic  specu- 
lation, but  probably  for  a  pragmatic  reason,  namely,  because 
he  wanted  to  influence  the  forces  of  nature  for  his  own  benefit. 
As  a  result  of  this  thinking  he  eventually  evolved  the  animistic 
ideas  which  underlie  all  religious  and  magical  beliefs  and  prac- 
tises. Briefly  stated,  these  ideas  are  to  the  effect  that  the  events 
which  take  place  in  nature,  and  the  occurrences  which  happen 
to  or  in  man,  are  caused  and  governed  by  beings  which  are 
conceived  to  be  more  or  less  like  the  beings  of  the  animate 
world,  and  sometimes  like  man  himself.  It  is,  therefore,  to  the 
interest  of  man  to  influence  these  so-called  spiritual  beings  to 
regulate  the  affairs  of  the  universe,  or  at  least  of  that  part  of 


1 6  CRIMINOLOGY 

the  universe  which  concerns  him,  in  such  a  manner  as  to  pro- 
mote the  safety  and  happiness  of  man. 

On  the  basis  of  these  animistic  ideas  have  developed  a  vast 
number  of  methods  of  influencing  these  alleged  spiritual  beings. 
These  methods  may  be  roughly  classified  into  two  main  groups, 
though  the  distinction  between  the  two  is  not  absolute,  and  they 
tend  to  shade  into  each  other.  These  are  the  magical  and  the 
religious  methods.  The  magical  methods  are  those  by  means  of 
which  it  is  attempted  to  coerce  these  spiritual  beings  to  do  the 
will  of  man.  The  religious  methods  are  those  by  means  of 
which  it  is  attempted  to  persuade  these  hypothetical  beings  to 
do  what  is  desired  by  man.  These  differences  in  methods  have 
probably  arisen  in  part  out  of  differences  of  opinion  as  to  the 
nature  of  these  spiritual  beings.  Magical  methods  postulate 
the  existence  of  spiritual  beings  which  can  be  coerced.  Religious 
methods  postulate  the  existence  of  spiritual  beings  which  may 
or  may  not  be  coerced,  but  which  may  possibly  be  persuaded. 
In  many  cases  the  co-existence  of  both  of  these  orders  of  animis- 
tic beings  has  been  postulated.  For  these  reasons  magical  and 
religious  methods  have  frequently  accompanied  each  other, 
and  have  been  practised  at  the  same  time  and  place. 

Magical  methods  may  be  classified  roughly  into  the  methods 
of  contagious  magic  and  those  of  imitative  magic.  ^  The  con- 
tagious methods  are  those  which  attempt  to  influence  some- 
thing through  something  else  which  has  at  one  time  been  in 
contact  with  the  first  thing.  For  example,  an  attempt  may  be 
made  to  injure  an  enemy  by  doing  injury  to  something  which 
was  at  one  time  a  part  of  him,  as,  for  example,  nail  parings, 
hair,  etc.  The  imitative  methods  are  those  which  attempt  to 
bring  about  desired  events  by  causing  other  events  which  re- 
semble in  certain  respects  the  desired  events.  For  example,  an 
attempt  may  be  made  to  stimulate  the  fertilizing  of  the  soil 
in  order  to  secure  a  good  harvest  by  going  through  the  process 
of  sexual  fertilization. 

It  is  obvious  to  civilized  man  that  both  of  these  kinds  of 
magical  methods  are  based  upon  false  analogies.  But  this  was 
not  apparent  to  primitive  men,  and  has  not  been  clear  to  many 
human  beings  even  to  the  present  day.     The  gradual  disap- 

*  Cf.  J.  G.  Frazer,  The  Golden  Bough,  especially  The  Magic  Art  and  the 
Evolution  of  Kings,  Vol.  I,  London,  191 1. 


THE   ORIGIN  AND   EARLY  EVOLUTION   OF   CRIME  1 7 

pearance  of  magic  has  come  about,  in  the  first  place,  as  a  result 
of  the  repeated  failure  of  magical  methods  to  attain  the  ends 
desired,  and,  in  the  second  place,  as  a  result  of  the  spread  of 
scientific  knowledge  with  regard  to  the  true  causes  of  the  events 
which  take  place  in  nature. 

Furthermore,  it  is  obvious  that  magic  has  to  a  large  extent 
grown  out  of  a  process  of  mental  association.  In  fact,  many  of 
those  who  have  practised  magic  have  lost  sight  of  or  have  never 
been  conscious  of  the  animistic  basis  of  magic,  and  have  been 
governed  entirely  by  the  apparent  similarities.  It  has  been  the 
weakness  of  magic  that  these  mental  associations  have  been  with 
respect  to  superficial  resemblances  which  have  not  necessarily 
involved  any  causal  relations. 

Religious  methods  have  been  and  are  of  such  a  nature  as  to 
persuade  the  alleged  spiritual  beings;  that  is  to  say,  they  are 
propitiatory  methods.  These  methods  have  included  prayer, 
oblations  and  sacrifices  of  all  sorts,  and  adulation  in  various 
forms  of  ceremonial  worship.  Like  magic  religion  also  has 
grown  in  large  part  out  of  mental  associations  with  respect  to 
superficial  resemblances.  Man  has  assumed,  because  of  ex- 
ternal resemblances  between  occurrences  caused  by  man  or  by 
other  animate  beings  and  the  other  events  which  take  place  in 
nature,  that  these  natural  events  are  caused  by  spiritual  beings 
similar  to  animate  beings.  But  religion  has  one  great  ad- 
vantage over  magic  which  has  enabled  it  to  survive  magic,  and 
which  may  enable  it  to  persist  as  long  as  mankind  survives. 
This  advantage  is  that  the  repeated  failure  of  religious  methods 
does  not  in  itself  discredit  religion,  for  it  is  always  possible  to 
assume  that  the  god  or  gods  are  unwilling  to  grant  the  re- 
quests of  man. 

The  above  paragraphs  give  a  brief  and  categorical  statement 
of  the  nature  of  magic  and  religion.  It  is  obviously  impossible  to 
discuss  here  all  of  the  complicated  questions  involved  in  the 
study  of  magic  and  religion.  But  it  is  necessary  to  have  at  least 
a  general  notion  of  their  nature  in  order  to  be  able  to  understand 
the  important  part  they  have  played  in  social  control  in  general 
and  in  penal  treatment  in  particular.^    This  is  especially  true 

^  Cf.  J.  G.  Frazer,  Psyche's  Task,  A  discourse  concerning  the  influence  of 
superstition  on  the  growth  of  institutions,  2d  ed.,  London,  1913. 
In  this  book  Frazer  gives  numerous  examples  of  the  ways  in  which  reli- 


l8  CRIMINOLOGY 

with  respect  to  primitive  peoples,  for  we  shall  See  that  magic  and 
religion  have  played  a  very  important  part,  perhaps  a  pre- 
dominant part,  in  determining  the  character  ol  the  first  crimes. 

Influence  of  Moral  Ideas  upon  the  Evo  aiioN  of  Crime 

With  regard  to  the  influence  of  moral  ideas  in  letermining  the 
character  of  the  first  crimes,  it  is  impossible  to  speak  with  as 
much  certainty.  This  is  due  partly  to  the  fact  that  it  is  difficult 
to  define  moral  ideas  and  morality.  This  is  a  question  which  I 
shall  discuss  in  Chapter  XXIII.  Furthermore,  it  is  difficult  fre- 
quently to  disentangle  moral  from  religious  and  magical  ideas,  as, 
for  example,  to  determine  whether  an  act  is  forbidden  because 
it  is  wrong  in  itself  or  because  it  is  displeasing  to  a  spiritual  being.  ^ 
Some  writers  have  believed  that  the  earliest  crimes  were  deter- 
mined only  by  religious  and  magical  ideas,  and  that  moral  ideas, 
in  the  strict  sense  of  the  term,  had  no  influence  until  later.  ^ 

gious  and  magical  ideas  have  served  as  means  of  social  control.  He  sum- 
marizes his  study  in  the  following  words:  — 

"To  sum  up  this  brief  review  of  the  influence  which  superstition  has  exer- 
cised on  the  growth  of  institutions,  I  think  I  have  shown,  or  at  least  made 
probable:  — • 

"I.  That  among  certain  races  and  at  certain  times  superstition  has 
strengthened  the  respect  for  government,  especially  monarchical  govern- 
ment, and  has  thereby  contributed  to  the  security  of  its  enjoyment: 

"IT.  That  among  certain  races  and  at  certain  times  superstition  has 
strengthened  the  respect  for  private  property  and  has  thereby  contributed 
to  the  security  of  its  enjoyment : 

"III.  That  among  certain  races  and  at  certain  times  superstition  has 
strengthened  the  respect  for  marriage  and  has  thereby  contributed  to  a 
stricter  observance  of  the  rules  of  sexual  morality  both  among  the  married 
and  the  unmarried: 

"IV.  That  among  certain  races  and  at  certain  times  superstition  has 
strengthened  the  respect  for  human  life  and  has  thereby  contributed  to 
the  security  of  its  enjoyment."    (P.  154). 

I  think  that  Frazer  exaggerates  the  value  of  this  kind  of  social  control  and 
underestimates  the  harm  which  has  been  caused  by  superstition. 

*  Cf.  C.  S.  Wake,  The  Evolution  of  Morality,  London,  1878,  Vol.  I,  pp. 
293-4.  Speaking  of  various  acts  which  are  punished  among  primitive  peo- 
ples, Wake  says:  "It  would  be  a  mistake,  however,  to  suppose  that  actions 
which  such  peoples  declare  to  be  punishable  as  crimes,  are  so  treated  be- 
cause they  are  thought  to  be  'immoral,'  as  we  understand  the  term."  This 
author,  however,  does  not  seem  to  realize  that  many  of  these  acts  are  pun- 
ished as  offenses  against  magical  and  religious  ideas. 

^  C/.  H.  Oppenheimer,  The  Rationale  of  Punishment,  London,  1913,  p.  91. 


THE  ORIGIN  AND  EARLY  EVOLUTION  OF  CRIME      1 9 

These,  then,  apparently  are  the  factors  which  determined  the 
first  crimes.  Ci  stom  doubtless  was  the  earliest  and  the  most 
important  facto^:  Later  appeared  magic  and  religion  to  give 
their  sanction  t(  certain  customs,  and  thus  to  strengthen  these 
customs,  to  mo<ii|y  other  customs,  perhaps  to  suppress  some 
customs,  and  to  found  some  entirely  new  customs.  Moral  ideas 
also  may  have  flayed  a  part  as  early  as  magic  and  religion. 

The  Earliest  Crimes 

Steinmetz,  as  a  result  of  an  extensive  survey  of  crimes  and 
pimishments  among  primitive  peoples,  has  prepared  the  follow- 
ing catalogue  of  "crimes  first  punished  by  the  community":  —  ^ 

1.  Witchcraft. 

2.  Incest. 

3.  Treason. 

4.  Sacrilege. 

5.  Miscellaneous  offenses,  most  of  which  are  offenses  against 
sexual  morality,  but  including  also  poisoning,  breaches  of  the 
hunting  rules,  etc. 

Oppenheimer  has  rearranged  this  catalogue  as  follows:  —  ^ 

1.  Treason. 

2.  Witchcraft. 

3.  Sacrilege  and  other  offenses  against  religion. 

4.  Incest  and  other  sexual  offenses. 

5.  Poisoning  and  allied  offenses. 

6.  Breaches  of  the  hunting  rules. 
In  studying  these  crimes  among  primitive  peoples  it  must  be 

constantly  borne  in  mind  that  since  these  peoples  do  not  possess 
the  art  of  writing,  and  since  the  state  has  not  as  yet  evolved  for 
them,  a  penal  code,  a  code  of  criminal  procedure,  courts  of  public 
justice,  in  other  words,  law  and  its  mechanism  in  the  formal 
sense  of  those  terms,  cannot  exist  amongst  them.  Many  acts 
which  in  civilized  communities  are  punished  by  the  law  are  in 

"It  was  under  the  aegis  of  religion  that  the  criminal  code  was  born.  In 
a  subordinate  way  other  factors  may  have  helped  its  seeds  to  sprout;  it 
remains  nevertheless  true  that  it  is  religious  thought,  religious  fears  and 
feelings  which  public  punishment  has  to  be  fathered  upon." 

^  S.  R.  Steinmetz,  Elhnologische  Studien  zur  ersten  Entwicklung  der  Strafe, 
Leiden,  1894,  2  vols. 

*H.  Oppenheimer,  op.  ciL,  p.  71. 


20  CRIMINOLOGY 

primitive  communities  subject  to  private  revenge.  For  exam- 
ple, killing  is  usually  reacted  against  by  retaliation  on  the  part  of 
the  family  of  the  victim.  In  a  sense  these  acts  also  are  crimes  in 
the  primitive  community,  for  private  retaliation  is  sanctioned 
by  the  public  opinion  of  the  community  and  is  even  expected  by 
it,  so  that  failure  to  exercize  such  retaliation  would  be  regarded 
as  indicating,  to  say  the  least,  cowardice,  if  not  graver  culpabil- 
ity. On  the  other  hand,  these  acts  are  not  reacted  against  by 
the  community  as  a  whole,  so  that  in  this  sense  they  cannot 
be  regarded  as  crimes. 

The  offenses  catalogued  above  are  crimes  in  the  sense  that 
they  are  punished  by  the  community  as  a  whole.  While  there 
is  no  written  law  on  the  subject,  it  is  clearly  understood  in  the 
community  that  such  acts  are  to  be  publicly  punished.  When- 
ever a  member  of  the  group  has  committed  or  is  suspected  of 
having  committed  such  an  act,  an  investigation  or  ceremony  is 
held  to  determine  the  facts,  which  is  a  sort  of  rude  prototype  of  a 
trial  by  a  court  of  public  justice.  This  primitive  judicial  process 
may  be  the  gathering  of  evidence  from  witnesses  by  the  elders  of 
the  group,  or  it  may  be  an  ordeal  inflicted  upon  the  suspected 
person,  or  it  may  be  an  incantation  performed  by  a  magician 
which  is  supposed  to  reveal  the  truth.  When  the  accused  person 
has  been  found  guilty  by  one  or  more  of  these  methods,  appro- 
priate punishment  is  imposed  upon  the  culprit  by  the  group  as  a 
whole  or  by  its  authorized  agents.  I  shall  describe  primitive 
punishments  later  in  connection  with  the  study  of  penal  treat- 
ment. 

Treason  is  most  likely  to  occur  in  connection  with  war.  If 
the  group,  whether  it  be  a  horde,  a  clan,  or  a  tribe,  is  at  war  with 
another  group,  and  one  of  its  members  aids  and  abets  the  enemy, 
or  even  merely  refuses  to  fight,  he  is  punished  for  this  crime 
which  menaces  the  integrity  and  survival  of  the  group.  The 
nature  of  treasonable  acts  varies  according  to  the  organization 
of  the  group  and  the  character  of  the  environment. 

Oppenheimer  says  that  "witchcraft  is  probably  the  first  in 
point  of  time,  and  certainly  the  most  universal,  of  all  primitive 
crimes."  ^  It  is  doubtful  if  witchcraft  as  a  crime  is  any  earlier 
or  any  more  universal  than  treason.  However,  it  is  certain  that 
since  a  very  early  time,  and  almost  if  not  quite  universally,  the 
1  H.  Oppenheimer,  op.  ciL,  p.  73. 


THE   ORIGIN   AND   EARLY  EVOLUTION  OF  CRIME  21 

practise  of  magic  has  been  punished.  But  this  does  not  mean 
that  all  magical  practises  have  been  punished.  Magic  may  be 
divided  into  the  so-called  "white"  and  "black"  magic.  The 
white  or  good  magic  is  the  kind  which  benefits  the  group,  by 
bringing  needed  rain,  by  destroying  the  enemy,  etc.  The  black 
or  bad  magic  does  injury  to  the  group,  by  blighting  the  crops, 
by  bringing  illness,  etc.  It  is  this  bad  magic  which  is  punished 
by  the  group.  Thus  it  comes  about  that  to  be  a  good  magician 
is  to  merit  great  rewards  from  the  group,  while  to  be  a  bad  one  is 
to  suffer  severe  punishments.  Furthermore,  to  be  a  magician 
at  all  is  likely  to  arouse  suspicion,  for  it  is  impossible  for  the  lay 
public  to  be  certain  that  the  magician  is  not  using  his  power 
surreptitiously  against  the  public.  Hence  the  persistent  sus- 
picion against  witchcraft  which,  as  is  well  known,  has  lasted 
down  to  comparatively  recent  times,  even  in  civilized  com- 
munities. 

Sacrilege  is  the  religious  correlative  of  witchcraft  as  a  crime. 
If  instead  of  or  in  addition  to  the  somewhat  impersonal  powers 
postulated  by  magic,  spiritual  beings  of  a  more  personal  char- 
acter, such  as  gods,  are  assumed  to  exist,  which  cannot  be  coerced 
but  can  be  pleased  or  offended,  then  it  is  greatly  to  the  public 
interest  that  these  beings  should  be  pleased  and  not  offended,  for 
otherwise  they  may  wreak  divine  vengeance  upon  the  group. ^ 
Hence  it  is  that  those  who  have  committed  acts  which  are  sup- 
posed to  offend  these  sensitive  deities  must  be  punished,  in  order, 
if  possible,  to  avert  this  divine  vengeance. 

Incest  as  a  primitive  crime  may  have  originated  as  a  violation 
of  the  rules  of  exogamy.  This  explanation  is  suggested  by  the 
fact  that  the  scope  of  forbidden  relationships  is  frequently  much 
greater  than  among  civilized  peoples.  I  have  not  the  space  to 
discuss  the  origin  of  exogamy,  whether  it  is  due  to  an  inborn 
aversion  to  sexual  intercourse  between  near  of  kin,  or  to  an 
acquired  aversion  to  sexual  intercourse  between  persons  who 
have  been  closely  associated  with  each  other  during  early  youth, 
or  to  some  other  cause.  ^ 

^  Thus  speaks  the  Hebrew  Yahveh  in  the  Mosaic  law  to  those  who  oflfend 
him:  —  "For  I  the  Lord  thy  God  am  a  jealous  God,  visiting  the  iniquity 
of  the  fathers  upon  the  children  unto  the  third  and  fourth  generation  of  them 
that  hate  me."    {Exodus,  XX,  5.) 

^  See  the  discussions  in  E.  Westermarck,  op.  cit.,  Vol.  II,  Chap.  40;  His' 


22  CRIMINOLOGY 

The  regulation  of  sexual  relations  varies  greatly  among  primi- 
tive peoples,  as  is  clearly  indicated  by  numerous  facts  which  have 
been  acciunulated  by  the  anthropologists.  There  is  variation 
from  a  high  degree  of  freedom  approaching  promiscuity  to 
strict  regulation.  However,  on  the  whole  it  seems  to  be  true 
that  there  is  little  sexual  morality  in  the  civilized  sense  of  the 
term;  that  is  to  say,  very  little  regulating  of  sexual  relations  be- 
cause they  are  right  or  wrong  in  themselves,  as  is  frequently  the 
case  in  civilization.  Adultery,  seduction,  and  rape  are  more 
likely  to  be  regarded  as  private  than  as  public  wrongs,  because 
they  are  violations  of  the  proprietary  interests  of  husbands  and 
fathers.  And  even  when  these  and  other  sexual  offenses  are 
treated  as  public  wrongs,  it  is  likely  to  be  for  religious  and 
magical  reasons.  It  is  frequently  believed  that  there  is  a  causal 
relationship  between  sexual  acts  and  the  success  of  the  group 
in  warfare,  hunting,  etc.  In  fact,  a  great  deal  of  magic  and 
religion  has  centered  about  sex  not  only  among  primitive  peoples 
but  in  civilization  as  well.  This  is  doubtless  due  to  the  myste- 
rious character  of  sex  to  those  who  have  no  scientific  knowledge 
of  its  nature,  because  of  the  strange  and  powerful  feelings  it 
arouses,  and  because  of  the  inexplicable  physiological  processes 
with  which  it  is  connected,  especially  in  the  female  sex  in  con- 
nection with  menstruation  and  reproduction.^ 

tory  of  Hitman  Marriage,  London,  1894,  Chaps.  XIV,  XV;  and  in  J.  G. 
Frazer,  Totemism  and  Exogamy,  London,  19 10,  4  vols. 

'  Cf.  H.  Oppenheimer,  op.  cit.,  p.  85.  "The  close  association  which  exists 
between  our  sexual  life  and  the  religious  side  of  our  nature  is  so  well  known 
to  the  student  of  the  history  of  religious  worship,  to  the  psychologist  and 
to  the  alienist  that  it  cannot  cause  surprise  if  offence  against  sexual  morality 
bear  from  the  beginning  a  religious  aspect.  Indeed  not  until  comparatively 
recent  times  in  Christian  countries  have  they  ceased  to  fall  within  the  sp)ecial 
province  of  ecclesiastical  jurisdiction.  Again,  the  sensations  and  emotions 
to  which  the  reproductive  instinct  gives  rise,  and  the  phenomena  connected 
with  its  satisfaction  are  full  of  mystery  to  the  civilized  no  less  than  to  the 
savage,  and  at  primitive  stages  of  human  thought  magic  properties  are 
attributed  to  what  is  otherwise  unaccountable  in  the  experiences  of  the 
inner  life,  no  less  than  to  strange  phenomena  in  the  outside  world.  No 
wonder  then  that  the  rules  relating  to  marriage  are  regarded  as  particularly 
sacred  and  that  sexual  relations  between  persons  not  allowed  to  intermarry 
are  treated  as  offences  of  a  particularly  heinous  type." 

The  mysterious  character  of  the  sexual  processes,  especially  in  woman, 
for  most  human  beings  is  well  illustrated  in  the  Hebrew  religion  by  the 
magical  notion  of  the  uncleanness  of  sex  which  was  incorporated  in  that 


THE   ORIGIN  AND   EARLY   EVOLUTION    OF   CRIME  23 

The  action  of  poisons  and  of  curative  drugs  naturally  is 
mysterious  to  primitive  man.  Consequently,  he  is  prone  to 
attribute  their  effects  to  supernatural  properties.  And  if  he  has 
reason  to  believe  that  these  properties  have  been  imparted  to 
them  by  magicians,  and  if  their  effect  is  bad  as  in  the  case  of 
poisoning,  then  he  will  regard  poisoning  and  similar  offenses 
as  black  magic  and  will  punish  them  as  such.  Hence  it  is  that, 
as  Oppenheimer  says,  '"primitive  toxicology  is  a  branch  of 
magic,"  ^  and  that  the  public  punishment  of  poisoning  is  due 
not  so  much  to  regard  for  human  life  as  to  fear  of  black  magic. 

It  is  of  the  utmost  importance  to  the  group  to  maintain  the 
hunting  rules,  because  hunting  is  frequently  the  main  source 
of  food.  Some  of  these  rules  have  obvious  utiHty.  Other  rules 
are  manifestly  absurd  to  civilized  man,  as  when  incest  is  pro- 
hibited because  it  is  supposed  to  interfere  with  success  in  hunt- 
ing. Here  again  magical  and  religious  ideas  are  having  their 
influence.  Totemic  regulations  probably  in  many  cases  origi- 
nated as  primitive  game  laws,  but  later  acquired  a  magical  or 
religious  character  which  obscured  their  original  purpose  and 
frequently  destroyed  their  utility.^ 

The  preceding  brief  survey  of  some  if  not  all  of  the  principal 
primitive  crimes  indicates  the  origin  and  early  evolution  of 
crime.  Back  of  these  punitive  reactions,  both  private  and 
public,  can  be  discerned  fundamental  human  traits  of  mind 
and  of  character,  such  as  the  powerful  emotion  of  fear  and  vari- 
ous instinctive  reactions  to  remove  the  causes  of  fear,  the  power- 
ful emotion  of  anger  and  various  instinctive  reactions  to  injure 
the  object  of  anger.  In  the  category  of  public  punishments 
can  be  discerned  both  errors  of  commission  and  errors  of  omis- 
sion. The  errors  of  commission  are  due  to  the  persistence  of 
customs  which  are  no  longer  useful,  and  to  the  influence  of  magic 
and  religion.  The  errors  of  omission  are  illustrated  in  the  com- 
paratively little  protection  afforded  by  primitive  public  justice 

religion.  (See  the  extraordinary  purificatory  rites,  especially  for  women, 
prescribed  in  Leviticus,  XII  and  XV.)  In  the  Christian  religion,  which  was 
derived  from  Judaism,  the  magical  notion  of  the  uncleanness  of  sex  has  been 
combined  with  and  has  reenforced  the  ascetic  ideal  of  propitiating  the  deity 
by  expiation  and  purification  through  chastity.  (See  the  Pauline  epistle 
/  Corinthians,  VII.) 

^  H.  Oppenheimer,  op.  cit.,  p.  88. 

^Cf.].G.  Frazer,  Totemism  and  Exogamy,  London,  1910,  4  vols. 


24  CRIMINOLOGY 

to  human  life  and  limb  and  to  property  rights.  This  lack  of 
protection  is  doubtless  due  in  part  to  a  low  regard  for  human 
life  and  to  a  rudimentary  development  of  property  rights.  But 
I  have  already  stated  that  offenses  against  human  life  and  some- 
times also  against  property  are  frequently  reacted  against  pri- 
vately with  the  sanction  of  the  community. 

These  offenses  which  were  privately  punished  later  developed 
eitTier  into  crimes  or  into  torts,  thus  giving  rise  to  the  distinc- 
tion between  the  criminal  and  the  civil  law.  Furthermore, 
magical  and  religious  ideas  had  a  considerable  influence,  as 
they  still  have,  to  act  as  a  restraint  upon  these  offenses  spon- 
taneously without  regard  to  private  or  public  punishment, 
because  of  the  automatic  consequences  feared  from  the  viola- 
tion of  these  ideas.  In  this  fashion  the  taboo  system  has  been 
a  powerful  restraining  force  because  of  the  dire  consequences 
feared  from  any  breach  of  the  taboo.  ^ 

'  See,  J.  G.  Frazer,  Psyche's  Task,  also  The  Golden  Bough,  especially  the 
volume  entitled  Taboo  and  the  Perils  of  the  Soul,  London,  191 1;  Hutton 
Webster,  Influence  of  Superstition  on  the  Evolution  of  Property  Rights,  in  the 
Am.  Jour,  of  Sociology,  Vol.  XV,  No.  6,  May,  1910,  pp.  794-805. 


CHAPTER  III 
CRIME  AND  SOCIAL  CONTROL 

The  struggle  for  existence  —  The  conflict  between  individual  and  social  in- 
terests—  Forms  of  social  control:  habit,  custom,  public  opinion,  reli- 
gion, magic,  the  state,  government,  and  law  —  Social  utility  the  cri- 
terion for  social  control  —  The  limits  of  social  control  —  The  charac- 
teristic features  of  crime  —  The  definition  of  crime  —  Crimes  created 
by  religious,  despotic,  and  class  legislation  —  Vicious  acts  stigmatized 
as  criminal:  acts  penalized  in  order  to  stimulate  public  opinion  against 
them  —  The  distinctive  traits  of  the  criminal  class. 

All  forms  of  behavior  come  into  being,  in  the  first  instance, 
in  the  course  of  the  struggle  of  the  individual  for  existence. 
Each  individual  must  overcome  the  difficulties  in  the  way  of  its 
existence  if  it  is  to  survive.  It  must  secure  the  food  it  needs, 
it  must  not  siicciimb  to  the  climate,  it  must  defend  itself  against 
its  enemies.  K^he  individuals  v^^hich  act  in  such  a  way  as  to 
attain  these'ends  will  survive,  while  those  who  fail  to  do  so  will  . 
be  eliminated.  J  So  that  there  takes  place  a  selective  process  in  \ 
the  course  of  which  some  individuals  survive  and  are  perpet- 
uated, while  other  individuals  are  eliminated.  In  this  fashion 
the  struggle  for  existence  determines  what  forms  of  behavior 
are  to  persist. 

The  Contlict  Between  Individual  and  Soclal  Interests 

In  every  social  group  conflict  arises  between  the  interests 
of  the  individual  and  the  welfare  of  the  group.  Every  person 
experiences  impulses  and  desires  which  if  gratified  would  injure 
other  persons,  and  would  give  rise  to  continual  warfare  which 
would  prevent  social  organization.  These  impulses  and  desires 
arise  out  of  the  instincts  and  emotions,  which  are  the  principal 
factors  in  the  determination  of  human  behavior. 

These  instincts  and  emotions  lead  sometimes  to  social  and 
sometimes  to  anti-social  behavior.  For  example,  the  instinct 
of  pugnacity  and  the  emotion  of  anger  are  continually  giving 


26  CRIMINOLOGY 

rise  to  acts  of  violence.  These  acts  are  usually  injurious  to 
society,  though  sometimes  they  are  committed  in  the  defense 
of  society.  Sexual  impulses  also  sometimes  give  rise  to  acts  of 
violence  which  are  anti-social  in  their  character.  But  the  sexual 
impulses  usually  arouse  a  tender  emotion  which  stimulates 
sympathetic  feelings  and  frequently  leads  to  acts  of  kindness. 
The  parental  instincts  and  emotions  cause  numerous  altruistic 
acts  of  self-sacrifice,  and  are  therefore  powerful  social  forces. 
But,  on  the  other  hand,  these  instincts  and  emotions  sometimes 
lead  to  anti-social  acts,  as  when  a  parent  does  injury  to  many 
persons  in  behalf  of  his  or  her  offspring.  In  similar  fashion 
many  other  instincts  and  emotions  under  certain  conditions 
lead  to  social  behavior,  and  under  other  conditions  lead  to  anti- 
social behavior.  Some  of  these  dynamic  forces  lead  more  fre- 
quently to  social  behavior,  and  other  forces  lead  more  frequently 
to  anti-social  behavior.  But  every  human  trait  may  be  mani- 
fested either  in  a  social  or  in  an  anti-social  manner. 

Social  groups  like  individuals  are  engaged  in  a  struggle  for 
existence.  It  goes  without  saying  that  the  survival  of  individ- 
uals is  of  primary  importance,  for  without  individuals  there 
could  be  no  groups.  But  in  every  social  or  partially  social 
species  the  survival  of  the  individual  depends  in  part  upon  the 
survival  of  the  group  to  which  it  belongs.  Consequently,  the 
behavior  of  the  members  of  the  group  must  in  the  long  run 
promote  the  survival  of  the  group.  Thus  it  is  that  social  in- 
stincts, sympathetic  feelings,  and  intellectual  activities  which 
are  socially  directed  tend  to  be  preserved  and  encouraged  in 
the  social  struggle  for  existence.  On  the  other  hand,  anti- 
social instincts  and  feelings,  and  intellectual  activities  which 
are  anti-socially  directed,  tend  either  to  be  eliminated,  or,  when 
too  deeply  rooted  in  human  nature  to  be  eliminated,  to  be  re- 
strained. 

Forms  of  Social  Control 

This  control  of  anti-social  tendencies  in  most  individuals 
comes  in  part  from  within.  Some  of  the  traits  in  human  nature 
exercize  a  restraining  influence  over  the  anti-social  tendencies, 
of  the  other  traits.  For  example,  the  sympathetic  feelings  may 
ameliorate  somewhat  the  tendency  to  do  injury  to  others  which 
is  encouraged  by  the  pugnacious  instinct.     But  this  internal 


CRIME   AND   SOCIAL   CONTROL  27 

control  frequently  is  not  sufficient,  giving  rise  to  the  need  for 
an  external  control.  Consequently,  many  forms  of  social  con- 
trol have  developed  in  human  society.^ 

Habit  is  a  very  important  form  of  control  in  society.  It  is 
true  that  habit  is  apparently  an  internal  and  not  an  external 
form  of  control.  But  even  though  each  habit  belongs  to  an 
individual  and  is  formed  by  him,  nevertheless  habit  is  a  form 
of  social  control,  because  the  character  of  the  habits  formed 
depends  largely  upon  social  influences.  In  organized  society 
many  habits  are  drilled  into  individuals,  so  that  the  formation 
of  habits  is  an  important  means  of  social  control. 

Custom  is  another  important  means  of  social  control.  ^  Cer- 
tain customs  are  also  the  habits  of  many  individuals.  Thus 
in  our  own  society  the  customary  ways  of  eating  food  with 
knives  and  forks  are  also  the  habitual  ways  of  the  great  major- 
ity of  persons,  because  the  acts  involved  are  repeated  so  fre- 
quently as  to  become  habitual.  But  other  customs  do  not  in- 
volve habits,  because  the  customary  acts  involved  are  not 
repeated  so  frequently  as  to  become  habits.  For  example, 
in  our  society  it  is  customary  to  marry.  But  it  can  hardly  be 
said  to  be  habitual,  because  the  great  majority  of  individuals 
do  not  marry  more  than  a  very  few  times  at  most.  Custom 
brings  about  uniformity  of  behavior  in  matters  in  which  uni- 
formity is  essential  or,  to  say  the  least,  desirable.  Thus  it  is 
well  to  have  a  custom  on  the  public  highway  that  vehicles  shall 
always  pass  to  the  right  or  always  to  the  left,  for  otherwise 
there  would  be  a  good  deal  of  disorder.  But,  as  we  shall  see, 
custom  also  does  injury  to  society  by  causing  an  excessive  de- 
gree of  uniformity,  and  by  obstructing  desirable  changes. 

Public  opinion  exists  when  the  majority  of  a  group  have  the 
same  definitely  formulated  opinion  about  a  certain  matter,  or, 
at  any  rate,  when  the  majority  of  those  who  have  a  definite 
opinion  agree.  When  public  opinion  concerns  matters  of  con- 
duct it  frequently  has  a  powerful  coercive  influence.  In  many 
cases  an  individual  will  suffer  bodily  injury  when  he  acts  con- 
trary to  the  public  opinion  of  the  group  to  which  he  belongs. 

^  Some  of  these  forms  of  social  control  are  graphically  described  in  E.  A. 
Ross,  Social  Control,  New  York,  1901. 

^  Cf.  W.  G.  Sumner,  Folkways,  A  Study  of  the  Sociological  Importance  oj 
Usages,  Manners,  Customs,  Mores,  and  Morals,  Boston,  1907. 


28  CRIMINOLOGY 

But  even  when  bodily  injury  is  not  inflicted,  he  will  usually 
experience  mental  discomfort  which  will  deter  him  from  acting 
contrary  to  public  opinion. 

Public  opinion  is  closely  related  to  custom.  Some  customs  are 
due  to  public  opinion  as  to  how  certain  things  should  be  done. 
On  the  other  hand,  many  customs  become  established  first,  and 
then  give  rise  to  public  opinion.  It  is  impossible  to  ascertain 
which  comes  first  in  the  majority  of  cases.  However,  it  is 
probable  that  usually  the  custom  becomes  established  without 
any  conscious  forethought,  and  then  public  opinion  follows  as  an 
attempt  to  rationaUze  the  customary  mode  of  conduct. 

When  pubhc  opinion  with  regard  to  matters  of  conduct  be- 
comes strong,  and  involves  the  belief  that  certain  forms  of  con- 
duct are  right  and  other  forms  are  wrong,  there  arise  moral 
ideas.  These  ideas  have  a  powerful  restraining  force,  because 
violations  of  them  usually  bring  in  their  train  penalties  of  various 
sorts.  I  shall  describe  the  nature  of  moral  ideas  in  Chap- 
ter XXIII,  and  a  considerable  portion  of  this  book  is  devoted 
to  describing  penalties  imposed  upon  violations  of  these  moral 
ideas. 

Religion  frequently  plays  an  influential  part  in  regulating 
human  conduct.  Its  representatives  teach  and  preach  the 
existence  of  powerful  spiritual  beings  which  desire  and  com- 
mand men  to  act  in  specified  ways,  and  assert  that  if  men  do  not 
act  accordingly  they  are  liable  to  suffer  severe  penalties.  To 
the  extent  that  religious  doctrines  are  believed  they  will  in- 
fluence the  conduct  of  men.  Furthermore,  religious  organiza- 
tions such  as  the  churches  have  been  formed  which  have  in 
many  cases  acquired  a  vast  amount  of  power  over  the  actions  of 
men.  The  rules  of  conduct  specified  by  religion  frequently  are 
the  same  as  those  which  have  already  been  developed  by  public 
opinion  and  have  become  moral  ideas.  When  moral  ideas  and 
religious  beliefs  are  identical  religion  gives  support  to  the  ac- 
cepted standard  of  morality.  Sometimes,  however,  the  religious 
rules  of  conduct  come  from  other  sources. 

Magical  ideas  also  have  played  a  part  similar  to  that  of 
religion  in  the  earlier  stages  of  social  evolution,  and  still  have 
much  influence  among  primitive  peoples  and  among  the  igno- 
rant classes  in  civilized  countries.  Magic  resembles  religion  in 
its  belief  in  the  existence  of  spiritual  beings,  but  differs  some- 


CRIME  AND  SOCIAL  CONTROL  29 

what  from  religion  in  the  measures  it  uses  to  influence  these 
powers.  In  either  case  human  conduct  is  regulated  with  refer- 
ence to  the  alleged  nature  and  desires  of  these  spiritual  beings.^ 
All  of  the  means  of  social  control  so  far  mentioned  existed  in 
the  earlier  stages  of  social  evolution.  But  there  was  usually  no 
highly  organized  mechanism  for  putting  them  into  effect.  Fre- 
quently they  were  manifested  through  individuals  who  were 
wreaking  personal  vengeance  for  injuries  done  to  themselves  or  to 
their  relatives,  but  who  were  at  the  same  time  giving  expression 
to  the  public  opinion,  customs,  moral  ideas,  religious  beliefs,  and 
magical  ideas  of  their  group.  The  earlier  forms  of  social  or- 
ganization, such  as  the  tribe,  had  a  rude  mechanism  for  ad- 
ministering these  means  of  social  control.^  A  highly  organized 
mechanism  came  into  being  with  the  evolution  of  the  state  and 
government.  Government  usually  operates  through  law.  Law 
is  based  in  large  part  upon  custom,  public  opinion,  moral  ideas, 
religion,  etc.  But  the  state  through  its  government  has  special 
means  for  enforcing  its  laws.  As  a  matter  of  fact,  all  forms  of 
social  control  are  eventually  expressed  to  a  considerable  extent 
through  the  law  and  its  enforcement.  The  most  drastic  and 
coercive  part  of  the  law  is  the  criminal  or  penal  law,  and  the  acts 
prohibited  by  this  branch  of  the  law  are  crimes. 

The  Limits  of  Social  Control 

The  forms  of  social  control  briefly  described  above  and  others 
which  might  be  mentioned  furnish  the  restraint  upon  the  anti- 
social tendencies  of  the  individual  which  is  essential  for  the 
preservation  of  society.  Utility  for  the  survival  of  society  is  in 
the  long  run  the  determining  factor  with  respect  to  these  forms 
of  social  control,  just  as  it  is  the  ultimate  determining  factor 
throughout  the  struggle  for  existence.  But  the  conditions  which 
determine  the  criterion  of  social  utility  change  continually,  so 
that  the  forms  of  social  control  must  change  accordingly.  Forms 
of  social  control  which  are  suitable  for  one  type  of  social  grouping 
may  not  be  suitable  for  another  type,  and  may  even  lead  to  its 

^  C/.  J.  G.  Frazer,  Psyche's  Task,  A  discourse  concerning  the  influence  oj 
superstition  on  the  growth  of  institutions,  2d  ed.,  London,  1913. 

2  See  G.  C.  Wheeler,  The  Tribe  and  Intertribal  Relations  in  Australia, 
London,  19 10. 


30  CRIMINOLOGY 

destruction.  So  that  forms  of  social  control  change  greatly  from 
time  to  time  and  from  one  group  to  another. 

It  happens  frequently,  however,  that  forms  of  social  control 
which  no  longer  have  social  utility,  sometimes  indeed  which 
have  never  had  social  utility,  will  persist  for  a  time,  even  though 
they  are  doing  injury  to  society.  But  this  can  happen  only 
when  they  are  not  fatal  in  their  effects,  for  otherwise  they  would 
destroy  the  social  group.  And  we  have  reason  to  believe  that 
many  social  groups  have  been  destroyed  by  injurious  forms  of 
social  control.  Religion  and  despotism,  sometimes  each  by 
itself,  but  frequently  in  unison,  have  at  many  times  and  places 
developed  excessively  drastic  forms  of  social  control  which 
have  been  very  injurious  to  a  large  part  of  the  membership  of  the 
group.  When  this  has  been  due  to  despotism,  it  has  been  in  the 
interest  of  a  few  at  the  expense  of  the  many.  When  it  has  been 
due  to  religion,  it  has  resulted  from  the  influence  of  beliefs  to  the 
effect  that  the  spiritual  beings  feared  by  man  demanded  these 
drastic  measures.  When  the  two  have  worked  in  unison,  the 
despot  has  usually  been  regarded  as  representing  in  some  man- 
ner the  spiritual  beings,  and  therefore  delegated  to  enforce  the 
wishes  of  these  beings.  Despots  have  frequently  found  it  useful 
to  reenforce  their  own  secular  authority  with  this  supernatural 
sanction.  Examples  of  excessive  forms  of  social  control  will  be 
mentioned  presently. 

Hence  it  is  that  there  are  two  aspects  to  the  problem  of  social 
control  and  regulation.  On  the  one  hand,  there  must  be  enough 
control  to  preserve  society  against  the  anti-social  tendencies  of 
its  individual  members.  On  the  other  hand,  for  two  reasons 
there  should  not  be  too  much  control.  In  the  first  place,  an 
excessive  amount  of  social  control  may  lead  to  the  destruction  of 
the  group  itself,  because  of  the  injury  it  does  to  its  members. 
But  even  when  it  does  not  destroy  the  group,  more  control  than 
is  essential  for  social  survival  is  bad,  because  it  limits  the  liberty 
of  individuals  unnecessarily.  The  restriction  of  individual 
liberty  is  a  necessary  evil  so  far  as  it  is  essential  for  social  sur- 
vival. It  becomes  an  unnecessary  evil  when  it  is  carried  beyond 
this  point.  Individual  liberty  and  social  control  always  have 
been  and  always  will  be  in  conflict  with  each  other  to  a  certain 
extent,  and  it  is  one  of  the  greatest  of  human  and  social  problems 
to  harmonize  them. 


crime  and  social  control  31 

The  Characteristic  Features  and  Definition  of  Crime 

The  most  obvious  feature  of  crime  is  that  it  is  created  by  the 
law  and  is  penalized  by  the  law.  The  great  majority  of  criminal 
acts  are  sins  of  commission.  They  are  acts  forbidden  by  the  law 
on  pain  of  punishment.  Some  crimes,  however,  are  sins  of  omis- 
sion. Such  a  crime  is  the  failure  to  perform  an  act  required  by 
the  law. 

However,  the  legal  definition  of  crime  is  hardly  broad  enough 
for  our  purpose,  because  the  crimes  which  the  law  has  desig- 
nated have  varied  greatly  from  time  to  time  and  from  place  to 
place.  We  must  distinguish  features  which  have  been  more  or 
less  characteristic  of  crimes  in  general  at  all  times  and  places. 

It  has  generally  been  true  that  criminal  acts  have  also  been' 
immoral  acts.  There  are,  however,  occasional  exceptions  to  this 
rule.  Furthermore,  the  great  majority  of  immoral  acts  are  not 
criminal,  so  that  it  would  be  impossible  to  identify  a  crime  by  its 
immorality  alone.  Since  they  are  immoral  acts,  crimes  are 
almost  universally  recognized  as  wrong  and  as  harmful  to 
society.  They  usually  include  a  considerable  portion  of  the 
more  serious  immoral  acts.  Hence  crimes  are,  generally  speak- 
ing, the  more  serious  of  the  anti-social  acts,  and  are  sometimes 
called  the  major  anti-social  acts.^ 

It  is  also  true  of  crimes  that  usually  they  are  acts  of  such  a 
nature  that  it  is  more  or  less  practicable  to  repress  them.  They 
are  ordinarily  acts  which  affect  other  persons  directly.  Conse- 
quently, it  is  usually  known  when  they  have  been  committed, 
and  the  injured  persons  are  as  a  rule  anxious  to  have  the  crim- 
inals punished.  These  persons  are  therefore  ready  to  help  the 
agents  of  the  law  to  apprehend  the  criminal  and  to  convict  him 
of  crime. 

Furthermore,  a  crime  usually  is  an  anti-social  act  of  such  a 
nature  that  its  repression  is  necessary  or  is  supposed  to  be  neces- 
sary to  the  preservation  of  the  existing  system  of  society.  In 
other  words,  crimes  are  supposed  to  include  the  anti-social  acts 
which  are  of  life-or-death  importance  to  the  existing  society, 
but  may  not  include  many  acts  which,  while  they  are  harmful 
socially,  are  not  of  such  grave  importance.  As  we  have  already 
seen,  forms  of  behavior  which  might  be  fatal  to  one  type  of 

'  Cf.  Havelock  Ellis,  The  Task  oj  Social  Hygiene,  London,  191 2,  Chap.  IX. 


32  CRIMINOLOGY 

society  would  not  necessarily  be  fatal  to  another  type  of  society, 
and  might  even  be  beneficial  to  it.  This  fact  explains  in  part 
the  differences  between  one  society  and  another  in  the  kinds  of 
acts  which  are  stigmatized  as  criminal. 

Crime  may,  therefore,  be  defined  as  follows:  A  crime  is  an 
aci  forbidden  and  punished  by  the  law,  which  is  almost  always  im- 
moral according  to  the  prevailing  ethical  standard,  which  is  usually 
harmful  to  society,  which  it  is  ordinarily  feasible  to  repress  by  penal 
measures,  and  whose  repression  is  necessary  or  is  supposed  to  be 
necessary  to  the  preservation  of  the  existing  social  order. 

Crimes  Created  by  Religious,  Despotic,  and  Class 
Legislation 

I  have  already  indicated  that  acts  have  frequently  been 
stigmatized  as  criminal  for  religious  or  magical  reasons.  The 
prototype  of  this  kind  of  social  repression  exists  among  savage 
peoples  in  the  form  of  taboo.  If  a  savage  believes  that  it  will 
be  displeasing  to  a  spiritual  power  for  him  to  commit  a  certain 
act,  he  will  refrain  from  doing  it  in  order  to  avoid  the  vengeance 
which  the  spiritual  power  would  otherwise  wreak  upon  him  and 
the  group  to  which  he  belongs.  Or  the  savage  may  not  per- 
sonify the  spiritual  power  to  this  extent,  but  may  believe  that 
its  automatic  reaction  to  his  act  will  be  of  such  a  nature  as  to 
do  him  injury.  But  if  he  does  commit  this  act,  his  group  is 
very  likely  to  wreak  vengeance  upon  him  for  thus  endangering 
the  welfare  of  the  group,  and  this  vengeance  constitutes  a 
primitive  form  of  punishment.  To  an  outsider  it  will  frequently 
be  obvious  that  the  observance  of  the  taboo  is  doing  the  individ- 
ual and  his  group  far  more  harm  than  its  violation.  But  to  the 
believer  in  a  spiritual  power  of  such  a  nature  it  will  be  perfectly 
reasonable  to  regard  the  violation  of  the  taboo  as  immoral  and 
criminal. 

The  same  principle  holds  throughout  every  religion.  No 
religion  which  has  acquired  a  considerable  following  has  failed 
to  make  criminal  at  law  some  at  least  of  the  acts  which  its  tenets 
forbade.  The  history  of  our  own  occidental  civilization  is  par- 
ticularly rich  in  these  instances,  owing  to  our  inheritance  from 
the  Hebrew  theocracy.  The  Hebrew  Yahveh  was  a  stern  and 
vengeful  god.  Consequently,  the  Hebrew  religion  and  law 
regarded  it  as  man's  duty  to  punish  offenses  against  God  in 


CRIME   AND   SOCIAL  CONTROL  33 

order  to  avert  divine  vengeance  inflicted  by  the  Hebrew  deity. 
The  Christian  religion  borrowed  this  idea  along  with  much 
of  the  Hebrew  religion.  Consequently,  the  severity  of  the 
penal  law  among  many  Christian  nations  is  to  be  explained  in 
part  by  the  fact  that  crimes  have  been  punished  not  only  as 
anti-social  acts,  but  also  as  violations  of  divine  law.  Many 
examples  of  this  may  be  found  near  at  hand.  During  the  Colo- 
nial days  the  Blue  Laws  of  Connecticut  furnished  good  examples. 
Much  of  the  Sabbatarian  legislation  of  the  present  day  is  of  the 
same  origin. 

Religion  has  frequently  condemned  on  religious  grounds  an 
act  which  was  already  regarded  as  immoral,  thus  adding  a  super- 
natural sanction  to  the  prohibition  already  existing  against  the 
act.  In  this  manner  religion  has  been  a  force  for  morality  and 
the  maintenance  of  society.  But  in  other  cases  religion  has 
condemned  and  has  succeeded  in  making  criminal  many  acts 
which  could  on  no  other  ground  be  regarded  as  harmful.  In 
our  own  recent  history  the  puritanical  nature  of  much  of  the 
religious  teaching  condemned  and  made  criminal  many  forms 
of  amusement  which  are  now  generally  regarded  as  innocent 
and  beneficial. 

Whenever  religion  succeeds  in  stigmatizing  as  criminal  acts 
which  are  not  regarded  as  objectionable  in  any  other  way,  most 
of  the  general  characteristics  of  crime  mentioned  above  do  not 
apply.  These  acts  usually  do  no  harm  to  individuals  or  to 
society,  they  are  not  generally  regarded  as  immoral  unless  the 
professional  religionists  succeed  in  educating  pubHc  opinion 
to  the  point  of  thinking  so,  and  their  repression  is  not  needed 
for  the  preservation  of  the  existing  system  of  society.  Fre- 
quently also  they  are  acts  which  it  is  not  feasible  to  repress 
by  penal  measures. 

As  I  have  already  indicated,  there  has  been  a  good  deal  of 
penal  legislation  in  the  interests  of  despots.  Much  of  the  legis- 
lation concerning  monarchs  and  royal  families  has  been  of  this 
nature.  For  example,  in  the  ancient  English  law  many  of  the. 
acts  made  treasonable  by  the  law  were  acts  directed  against 
the  royal  family,  but  which  would  not  necessarily  have  done 
any  injury  to  society  at  large.  Such  legislation  still  exists  in 
certain  countries  in  the  form  of  laws  penalizing  acts  of  lese 
tnajeste.    As  the  power  of  the  kingship  has  declined,  the  extent 


34  CRIMINOLOGY 

of  such  legislation  has  lessened.  It  has  been  encouraged  in  the 
past  by  the  divine  traits  which  have  been  attributed  to  kings, 
and  which  have  not  yet  been  entirely  forgotten.  This  belief 
in  a  relationship  between  kings  and  divinity  has  arisen  out  of 
the  fact  that  the  kingship  and  godhood  have  in  part  the  same 
origin  in  the  minds  of  men.^ 

But  there  has  probably  been  even  more  penal  legislation  in 
the  interests  of  classes.  Whenever  a  class  has  succeeded  in 
gaining  the  ascendancy  politically,  economically,  or  otherwise, 
it  -has  invariably  enacted  more  or  less  penal  legislation  in  its 
own  interest.  At  various  times  and  places  the  military  class, 
the  landholding  class,  the  capitalist  class,  has  passed  legislation 
in  its  own  favor.  When  the  feudal  barons  in  Europe  attained 
the  supremacy,  they  created  laws  penalizing  the  peasants  who 
tried  to  leave  their  land,  thus  making  the  workers  on  their  land 
practically  their  slaves.  Up  to  the  last  century  in  England 
poaching  was  severely  punished,  because  this  was  a  violation 
of  the  vested  rights  of  the  landowning  aristocracy.  Today  noth- 
ing is  more  jealously  safeguarded  by  the  law  than  the  prop- 
erty rights  of  capital. 

It  is  evident  that  crimes  created  by  despotic  and  class  legis- 
lation do  not  conform  in  the  main  to  the  characteristics  of  crime 
described  above.  The  acts  penalized  by  such  legislation  usually 
do  not  injure  society  outside  of  the  small  group  in  whose  interest 
the  legislation  has  been  passed,  they  are  frequently  not  re- 
garded as  immoral  by  the  public  "at  large,  and  their  repression 
may  not  be  necessary  for  the  preservation  of  the  existing  so- 
ciety. In  the  past  there  has  been  a  vast  amount  of  sumptuary 
legislation  regulating  sometimes  in  great  detail  the  life  of  the 
public  at  large  at  the  will  of  the  despot  or  of  the  ruling  class. 
Religion  has  also  played  an  important  part  in  determining 
the  character  of  sumptuary  legislation. 

Vicious  Acts  Stigmatized  as  Criminal 

An  act  is  sometimes  stigmatized  as  criminal  on  the  ground 
that  it  is  vicious,  even  though  it  does  not  conform  in  the  main 

^  For  numerous  examples  of  religious  and  despotic  penal  legislation  see 
E.  Westermarck,  The  Origin  and  Development  of  the  Moral  Ideas,  London, 
1906,  Vol.  I,  Chap.  7. 


CRIME   AND   SOCIAL   CONTROL  35 

to  the  general  characteristics  of  crime  mentioned  above.  It 
is  an  act  which  is  or  is  supposed  to  be  harmful  to  society,  but 
which  does  no  harm  to  any  one  directly,  and  which  can  fre- 
quently be  carried  on  in  secret  with  little  fear  of  detection. 
In  this  country  at  present  there  is  a  strong  tendency  to  penalize 
acts  which  are  regarded  by  the  public  at  large  as  vicious,  as, 
for  example,  gambling,  drunkenness,  extra-marital  sexual  rela- 
tions, etc.  This  situation  raises  the  practical  question  as  to 
whether  it  is  feasible  to  repress  vicious  acts  by  penal  means, 
and,  if  these  laws  are  certain  to  become  dead  letters,  whether 
it  would  not  be  preferable  to  use  indirect  means  to  attain  this 
end.    I  shall  discuss  this  problem  in  Chapter  XXI. 

Still  another  ground  upon  which  acts  are  sometimes  penalized 
is  in  order  to  stimulate  public  opinion  against  these  acts.  This 
has  been  done  in  the  past  for  various  reasons,  as,  for  example, 
for  religious  reasons.  It  is  often  done  nowadays  in  the  interests 
of  public  sanitation,  public  safety,  etc.  There  are  many  acts 
which  do  not  injure  any  one  directly  and  apparently  have  no 
evil  results,  and  yet  which  cause  much  harm.  On  account  of 
their  apparent  innocuousness  there  is  no  public  sentiment 
against  these  acts.  They  may  not  even  be  regarded  as  vicious, 
much  less  as  deserving  penal  treatment.  But  when  their  dan- 
gerousness  is  discovered  the  government  may  prohibit  these 
acts,  in  the  first  place,  to  call  attention  to  their  harmful  char- 
acter, and,  in  the  second  place,  to  discourage  people  from  com- 
mitting them.  An  example  of  this  sort  of  legislation  is  the  law 
against  spitting  on  the  sidewalk.  Until  scientific  research  had 
revealed  the  fact  that  tuberculosis  and  other  diseases  are  spread 
by  germs  in  the  sputum  the  dangerousness  of  such  a  practise 
was  not  recognized.  Since  this  discovery  was  made  this  act 
has  been  forbidden  by  the  law  in  many  places.  The  complicated 
life  of  our  modern  civilization,  especially  under  the  urban  con- 
ditions of  a  large  city  has  made  many  kinds  of  conduct  socially 
harmful  which  otherwise  would  not  be  harmful,  and  has  led 
to  much  legislation  of  this  sort.  Here  again  the  practical  ques- 
tion may  be  raised  as  to  the  advisability  of  dealing  with  these 
acts  by  means  of  penal  methods,  or  as  to  whether  indirect 
methods  would  not  be  preferable. 

We  can  now  see  that  there  have  been  and  still  are  many 
instances  of  social  control  in  the  form  of  penal  repression  which 


36  CRIMINOLOGY 

are  not  beneficial,  and  frequently  are  positively  harmful.  But 
obviously  there  is  a  limit  to  these  instances,  because  an  excessive 
number  of  them  would  lead  to  the  destruction  of  society.  In 
the  course  of  social  evolution  there  has  taken  place  a  process 
of  the  selection  and  survival  of  the  desirable  methods  of  con- 
trol, so  that  social  control  has  become  more  and  more  effective. 
Consequently,  penal  repression  is  now  inspired  not  so  much 
by  blind  vengeance  as  by  the  desire  to  secure  the  deterrence 
from  and  the  prevention  of  anti-social  acts. 

The  Distinctive  Traits  of  the  Criminal  Class 

In  the  light  of  the  preceding  discussion  we  may  expect  to 
find  at  any  time  and  place  those  persons  criminal  who  are  most 
likely  to  commit  the  acts  stigmatized  as  crimes  at  that  time 
and  place.  For  this  reason  it  may  appear  as  if  every  social  sys- 
tem should  have  its  own  criminal  types  which  woiild  be  entirely 
or  in  the  main  different  from  the  corresponding  types  of  every 
other  social  system.  But  while  it  is  doubtless  true  that  these 
types  vary  somewhat  from  one  social  system  to  another,  yet 
it  would  be  an  error  to  carry  this  idea  too  far  for  the  following 
reasons. 

In  the  first  place,  certain  acts  are  stigmatized  as  criminal 
under  almost  every  social  system.  For  example,  murder  is  a 
crime  in  every  civilized  community.  So  that  the  persons  who 
are  prone  to  commit  these  acts  are  likely  to  become  criminals 
in  almost  every  community.  Furthermore,  as  communities 
increase  in  similarity  owing  to  the  internationalization  of  cul- 
ture, their  legal  and  moral  codes  become  more  and  more  alike, 
and  consequently  their  criminal  types  become  more  and  more 
alike. 

In  the  second  place,  inasmuch  as  the  category  of  acts  stig- 
matized as  criminal  is  in  most  places  rather  extensive,  it  is 
difficult  for  any  human  being  to  live  for  any  great  length  of 
time  without  committing  some  of  these  acts.  Consequently, 
in  every  community  there  is  some  criminality  diffused  through- 
out the  public  at  large,  so  that  the  line  of  distinction  between 
the  criminal  and  the  non-criminal  classes  is  by  no  means  hard 
and  fast.  But  most  persons  do  not  become  known  and  are  not 
punished  as  criminals,  either  because  they  do  not  commit  these 


CRIME   AND   SOCIAL   CONTROL  37 

acts  with  sufficient  frequency  to  attract  public  notice,  or  be- 
cause on  account  of  their  clevel^ness  or  for  some  other  reason 
they  are  not  caught. 

In  the  third  place,  we  have  reason  to  believe  that  there  are 
certain  types  of  individuals  who  are  very  likely  to  become  crim- 
inals under  any  social  system.  Several  types  of  human  beings 
are  prone  to  violate  legal  and  moral  conventions,  whatever  those 
conventions  may  be.  In  every  community  are  to  be  found  in- 
tractable, rebellious,  and  unadaptable  persons  who  are  sure  to 
react  against  any  form  of  social  control.  In  this  group  it  may 
be  possible  to  discern  a  universal  criminal  type  which  is  to  be 
found  in  every  community.  Consequently,  while  the  personnel 
of  the  criminal  class  at  any  time  and  place  is  determined  in  part 
by  the  kinds  of  acts  which  are  criminal,  it  is  also  determined  in 
part,  and  perhaps  in  large  part,  by  the  traits  of  this  universal 
criminal  type. 

We  can  now  discern  more  clearly  several  considerations  which 
must  never  be  forgotten  when  studying  the  criminal  class  at 
any  specific  time  and  place.  In  the  first  place,  it  must  always 
be  borne  in  mind  that  the  distinction  between  the  criminal  and 
the  non-criminal  classes  is  by  no  means  a  hard  and  fast  one. 
In  the  second  place,  it  is  doubtless  true  that  the  kinds  of  acts 
which  are  stigmatized  as  criminal  will  determine  in  part  what 
individuals  are  to  become  criminal.  For  example,  at  a  time 
when  crimes  against  the  person  are  rigorously  pursued  by  the 
law,  the  individuals  who  are  prone  to  commit  acts  of  violence 
against  their  fellow  beings  are  likely  to  become  criminals.  But, 
in  the  third  place,  it  is  probably  true,  as  I  have  already  stated, 
that  certain  peculiarities  can  be  distinguished  of  those  who  are 
criminal  at  all  times  and  places.  There  are  several  types  of 
persons  who  are  always  peculiarly  prone  to  violate  the  legal 
and  moral  conventions  which  determine  what  acts  are  criminal. 
It  is  evident  that  the  last  condition  limits  the  preceding  one, 
and  that  the  criminal  class  at  any  time  is  determined  in  part 
by  what  acts  are  criminal,  but  perhaps  in  larger  part  by  traits 
which  are  more  or  less  universally  characteristic  of  this  class. 

I  have  already  stated  earlier  in  this  chapter  that  the  elemen- 
tary traits  of  human  nature  are  the  fundamental  factors  in  the 
determination  of  criminal  conduct,  as  of  every  other  kind  of 
conduct.    No  one  of  these  traits  alone  causes  this  conduct.    For 


38  CRIMINOLOGY 

example,  there  is  no  distinct  instinct  of  crime  which  makes 
human  beings  commit  crimes.  Nor  are  there  any  instincts 
which  invariably  or  almost  always  lead  to  crime.  On  the  con- 
trary, any  instinct  may  under  certain  conditions  lead  to  crime, 
while  under  other  conditions  it  may  lead  to  conduct  having 
great  social  utility.  The  instincts  are  the  product  of  a  long 
process  of  evolution,  and  came  into  existence  long  before  the 
laws  which  designate  the  crimes  of  today.  Furthermore,  these 
laws  have  not  been  devized  by  psychologists  who  were  ac- 
quainted with  the  human  instincts  and  wished  to  restrain  some 
of  them.  On  the  contrary,  they  have  been  devized  by  men 
who  usually  have  known  nothing  whatever  about  human  psy- 
chology, but  have  wanted  to  prevent  certain  kinds  of  conduct 
which  they  believed  to  be  socially  harmful.  Hence  it  is  inac- 
curate to  speak  of  a  criminal  instinct,  or  of  an  instinctive  type 
of  criminal. 

In  similar  fashion,  there  are  no  specifically  criminal  feelings, 
but  any  feeling  may  under  certain  conditions  lead  to  criminal 
conduct,  while  under  other  conditions  it  may  impel  towards 
socially  useful  conduct.  As  for  the  intelligence,  when  viewed  by 
itself  it  is  entirely  unmoral  in  character.  It  acquires  moral 
significance  only  in  connection  with  the  sort  of  conduct  it  hap- 
pens to  direct.  In  some  circumstances  it  may  direct  instincts 
and  emotions  towards  criminal  conduct,  and  in  other  circum- 
stances towards  non-criminal  conduct.  But  the  influence  of  the 
intelligence  is  probably  on  the  whole  against  crime,  because  it 
enables  the  individual  to  understand  the  need  and  justification 
for  social  control,  and  thus  makes  him  more  prone  to  heed  the 
law. 

There  are,  therefore,  no  peculiar  crime  factors  in  human 
nature.  As  a  matter  of  fact,  criminal  conduct  frequently  results 
from  the  unusual  strength  of  certain  normal  traits,  or  from  the 
unusual  weakness  of  certain  restraining  factors  in  human  na- 
ture. Every  human  being  has  in  him  the  making  of  a  criminal. 
There  are  no  saints,  despite  the  canonizations  of  the  church. 
In  every  one  are  to  be  found  the  emotions  of  anger  and  of 
jealousy  which  frequently  lead  to  murder,  the  sexual  passion 
which  sometimes  ■  leads  to  sexual  crimes,  the  germ  of  avarice 
which  leads  to  various  crimes  against  property,  the  love  of 
pleasure  and  the  lack  of  foresight  which  in  their  extreme  forms 


CRIME  AND  SOCIAL  CONTROL  39 

lead  to  various  kinds  of  criminal  conduct.  In  fact,  if  any  human 
trait  is  born  in  a  person  in  unusual  strength,  or  is  developed  to 
an  unusual  degree  in  the  course  of  the  lifetime  of  the  individual, 
or  is  stimulated  to  an  excessive  degree  under  unusual  circum- 
stances, it  may  lead  to  criminal  conduct.  In  similar  fashion,  if 
some  of  the  restraining  factors  in  human  nature  are  congenitally 
weak,  or  if  they  are  not  fully  developed  during  the  lifetime  of  the 
individual,  or  if  they  are  weakened  or  inhibited  under  unusual 
circumstances,  some  of  the  normal  traits  may  not  be  prevented 
from  causing  criminal  conduct. 

These  facts  indicate  that  no  persons  are  born  criminal  in  the 
sense  that  they  are  criminal  at  birth,  or  predestined  at  the  time 
of  their  birth  to  become  criminal.  It  is,  however,  convenient 
frequently  to  speak  of  several  of  these  types  of  persons  born  with 
abnormal  traits,  which  are  very  likely  to  lead  them  into  criminal 
conduct,  as  being  congenitally  criminal.  Criminal  conduct  is, 
therefore,  like  every  other  kind  of  conduct,  the  outcome  of  the 
cooperation  of  these  internal  factors  in  the  determination  of 
human  behavior  with  the  forces  of  the  environment.  In  order 
to  understand  the  criminality  of  criminals  it  is  necessary  to 
study  both  these  internal  factors  and  the  external  environmental 
factors. 


PART  IT 

CRIMINOGENIC  FACTORS  IN  THE  ENVIRON- 
MENT 


CHAPTER  IV 

PHYSICAL    ENVIRONMENT  —  CLIMATE,    SEASON, 
AND  THE  WEATHER 

Influence  of  the  physical  environment  in  general  —  Influence  of  topography 
and  the  nature  of  the  soil  —  Influence  of  climate,  the  seasons,  and  the 
weather  —  Meteorological  factors  mingled  with  cultural  forces. 

The  physical  environment  has  much  influence  upon  criminal 
conduct,  as  it  has  upon  all  other  forms  of  human  behavior.  In 
one  sense  it  is  true  that  in  the  long  run  the  physical  environment 
is  the  only  factor  in  the  determination  of  human  behavior;  for 
it  is  this  environment  which  has  determined  the  organic  evolu- 
tion which  has  made  possible  the  human  species,  and  this  en- 
vironment has  also  determined  the  cultural  evolution  which  has 
characterized  mankind.  But,  while  recognizing  the  omnipotence 
of  the  physical  environment  in  this  broad  sense,  it  is  desirable  in 
an  intensive,  detailed  study  of  human  phenomena  to  distinguish 
between  the  influence  of  the  physical  environment  and  the 
organic  and  cultural  factors  which  have  been  determined  by  this 
environment.  Some  writers  have  not  made  this  distinction  with 
sufiicient  clearness,  and  consequently  have  failed  to  give  due 
weight  to  organic  and  cultural  factors.^ 

The  influence  of  the  physical  environment  upon  criminal 
conduct  can  be  studied  in  some  respects  more  or  less  directly,  in 
other  respects  only  indirectly.  The  influence  of  topographical 
conditions  and  the  nature  of  the  soil  is  very  great,  but  can  be 
studied  only  indirectly.  For  example,  the  population  cannot  be 
dense  in  a  mountainous  or  in  an  arid  region.  But  it  is  very 
likely  to  become  dense  in  a  fertile  river  valley,  and  to  become 
highly  concentrated  in  a  city  located  upon  a  good  harbor.  In 
similar  fashion,  the  wealth  of  the  population  of  any  region  is 
determined  in  part  by  the  topography  and  the  soil  of  that  region. 

The  influence  of  climate,  season,  and  the  weather  upon  crime 

^  For  example,  see  the  able  but  one-sided  work  of  H.  T.  Buckle,  History  of 
Civilization  in  England,  New  York,  1903,  2  vols. 


44  '  CRIMINOLOGY 

can  be  studied  somewhat  more  directly.  This  involves  the  study 
of  the  temperature,  the  variations  of  heat  and  cold,  the  relative 
length  of  the  days  and  the  nights,  the  humidity  of  the  atmos- 
phere, and  the  movements  in  the  atmosphere  in  the  form  of 
winds.  Many  statistics  have  been  gathered  which  indicate 
several  definite  correlations  between  these  telluric  conditions 
and  the  extent  and  character  of  crime. 

Influence  of  Climate 

History  shows  that  the  peoples  of  hot  climates  have  usually 
been  less  active  than  the  peoples  of  temperate  chmates.  Civiliza- 
tion has  developed  largely  in  the  temperate  zones,  though  it  is 
probably  true  that  some  of  the  earlier  stages  in  social  evolution 
took  place  in  the  tropics.  In  historical  times,  at  any  rate,  the 
dominant  peoples  have  been  those  of  the  temperate  zones. 
Excessive  heat  tends  to  depress  human  activity,  while  moderate 
cold  stimulates  it. 

There  is,  however,  one  effect  of  heat  which  tends  to  increase 
one  kind  of  activity.  Excessive  heat,  and  especially  a  change 
from  a  moderate  to  a  hot  temperature,  stimulates  the  emotions 
and  tends  to  increase  irritabiUty,  thus  leading  to  acts  of  violence. 
This  fact  doubtless  explains  the  fact  that  crimes  against  the 
person  are  almost  always  more  numerous  in  hot  climates  than 
they  are  in  cold  climates,  and  more  numerous  in  the  warm  sea- 
sons than  they  are  in  the  cold  seasons.  An  additional  reason  for 
this  phenomenon  is  that  with  a  warm  temperature  an  out-of- 
door  life  is  led  which  offers  more  opportunities  for  many  crimes 
against  the  person,  such  as  assault,  rape,  etc. 

Crimes  against  property,  on  the  contrary,  tend  to  decrease 
with  a  warmer  temperature,  and  to  increase  as  the  temperature 
falls.  This  is  doubtless  due  in  part  to  the  direct  effect  of  the 
cold  in  stimulating  the  activity  needed  for  many  of  the  crimes 
against  property.  But  in  this  case  the  influence  of  the  tempera- 
ture probably  is  more  indirect  than  direct.  With  a  warmer 
temperature  there  is  usually  a  more  abundant  food  supply,  less 
need  for  clothing  and  shelter,  and  sometimes  more  employment, 
while  the  long  nights  of  winter  offer  more  opportunities  for  cer- 
tain crimes  against  property,  such  as  burglary  and  robbery. 

I  shall  now  cite  a  few  statistics  which  illustrate  these  climatic 


PHYSICAL  ENVIRONMENT  45 

differences  in  crimes  against  the  person  and  crimes  against 
property  and  reveal  a  correlation  between  climatic  variations 
and  the  extent  and  character  of  crime.  The  following  table 
indicates  the  proportions  between  crimes  against  the  person  and 
crimes  against  property  in  the  different  parts  of  France: —  ^ 

Crimes  against        Crimes  against 
the  Person  Property 

Northern  France 2.7   4.9 

Central  France 2.8   2 .  34 

Southern  France 4 .  96 2.32 

According  to  these  statistics  the  proportions  between  these 
two  kinds  of  crimes  become  almost  directly  inverse  from  the 
northern  to  the  southern  part  of  France.  While  there  are  for 
every  loo  crimes  against  the  person  18 1.5  crimes  against  prop- 
erty in  Northern  France,  there  are  in  Southern  France  for  every 
100  crimes  against  the  person  only  48.8  crimes  against  property. 

The  following  table  furnishes  similar  statistics  for  the  different 
parts  of  Italy: —  ^ 

For  each  100,000  inhabitants  there  occur  in 

Homicides, 
Indictments 
for  Crime 

Northern  Italy 746 

Central  Italy 862 

Southern  Italy 1094 

Insular  Italy 1141 

This  table  does  not  show  the  inverse  correlation  between  the 
two  kinds  of  crimes  as  clearly  as  the  preceding  table,  probably 
owing  to  the  intervention  of  various  economic  and  other  social 
factors. 

Influence  of  the  Seasons 

I  shall  now  cite  a  few  tables  which  indicate  a  correlation 
between  seasonal  fluctuations  and  crime.     The  following  ta- 

*  R.  Mayo-Smith,  Statistics  and  Sociology,  New  York,  1895,  p.  270.  These 
figures  are  taken  from  statistics  gathered  by  Guerry  for  the  years  1826-1830. 

*  C.  Lombroso,  Crime,  Its  Causes  and  Remedies,  Boston,  191 1,  p.  13. 
Lombroso  fails  to  specify  what  period  of  time  is  covered  by  these  statistics. 


'ighway  Rob- 

Aggravated 

beries  with 

Theft 

Homicide 

7.22 

143 -4 

15-24 

174.2 

31.00 

143  •3- 

30  SO 

195-9 

46 


CRIMINOLOGY 


ble  shows  the  relation  between  sexual  crime  and  season  in 
France:  —  ^ 

Sexual  Crimes  in  Relation  to  Season  in  France.     1827-1869 
(After  Ferri,  percentages  reckoned  by  Aschaffenburg) 

Sexual  Crimes  in  France.     1827-1869. 


Absolute 
Numbers 

January 584 

February 563 

March 643 

April 608 

May 904 

June 1,043 

July 860 

August 794 

September 653 

October 532 

November 514 

December 534 

Unknown 1,421 


This  table  shows  clearly  that  these  crimes  increased  greatly 
during  the  warmer  months,  reaching  their  maximum  in  June. 
This  is  probably  due  in  part  to  a  periodicity  in  the  sexual  life 
of  man  which  appears  to  reach  its  apogee  in  the  spring  or  early 
summer,  and  which  was  doubtless  caused  originally  by  seasonal 
changes.  It  is  also  due  in  part  to  the  out-of-door  life  of  the 
warmer  months.  But  it  is  doubtless  due  to  a  certain  extent  to 
the  erotic  stimulation  of  heat. 

It  is  interesting  to  compare  the  figures  for  these  crimes  with 
the  figures  for  the  days  of  conception  during  a  period  of  years 
which  are  given  in  the  same  table.  These  figures  indicate  a  slight 
increase  in  the  number  of  conceptions  during  the  warmer  months 
which  reach  their  maximum  in  May.  This  suggests  the  possible 
existence  of  the  sexual  periodicity  mentioned  in  the  preceding 
paragraph. 

^  Rearranged  from  G.  Aschaffenburg,  Crime  and  Its  Repression,  Boston, 
1913,  p.  16.  The  figures  are  taken  from  E.  Ferri,  Das  Verbrechen  in  seiner 
Abhangigkeit  von  dem  jahrlichen  Temperaturwecksel,  p.  38;  Stttdi  sulla  crim- 
inalitd  ed  altri  saggi,  p.  81. 


Number   of 

Conceptions. 

jlts 

On  Children 

1863-] 

871 

Absolute 

Absolute 

% 

Numbers 

% 

Numbers 

% 

7.09 

1,106 

5-57 

2,603 

7.84 

6.84 

1,041 

5 

24 

2,661 

8.02 

7.82 

1,366 

6 

88 

2,608 

7-85 

7-39 

1,700 

8 

56 

2,887 

8.69 

10.98 

2,175 

10 

95 

3,060 

p  21 

12.67 

2,585 

13 

03 

3,018 

9.08 

10.45 

2,459 

12 

42 

2,911 

8.76 

9.64 

2,208 

II 

13 

2,742 

8.25 

7-93 

1,773 

8 

93 

2,810 

8.46 

6.46 

1,447 

7 

29 

2,625 

7.91 

6.24 

983 

4 

95 

2,620 

7.89 

6.49 

939 
16,160 

5 

05 

2,665 

8.02 

PHYSICAL  ENVIRONMENT  47 

The  following  table  shows  the  seasonal  distribution  of  crim- 
inahty  in  Germany:  —  ^ 

The  Criminality  of  Germany  Distributed  According  to  the  Year 
AND  Month  when  the  Crimes  Are  Committed 

If  there  are  loo  offenses  per  day  in  the  year,  there  are  per  day  in  the  month 

Kind  of  Crimes  and 

Offenses  Jan.  Feb.  March  April  May  June  July  Aug.  Sept.  Oct.  Nov.  Dec. 

Crimes  and  offenses  against 

national  laws 95  97  90  92  99  103  105  IO0  105  103  103  98 

Resisting  officer 89  94  89  94  97  104  109  J17  112  104  99  90 

Breach  of  the  peace 94  99  96  100  98  101  105  no  106  102  100  89 

Rape 64  66  78  103  128  144  140  130  108  90  68  69 

Obscene  acts,  distribution 

of  obscene  literature  ...   62  74  83  101  130  iso  141  133  109  84  69  64 

Insult  ("B^eidigung")...   83  89  85  93  108  115  120  122  113  99  93  80 

Infanticide 89  127  127  121  118  102  95  80  91  86  82  87 

Simple  assault  and  battery  76  80  79  95  108  116  124  134  121  102  88  74 
Aggravated    assault    and 

battery 75  78  78  95  108  113  118  133  124  106  93  78 

Crimes  against  property.  .109  108  96  90  93  93  92  93  93  104  113  117 
Petit   larceny,   also   when 

repeated 113  115  98  85  87  88  88  92  92  106  117  121 

Grand  larceny,  also  when 

repeated 102  107  92  89  94  98  98  94  96  106  112  111 

Embezzlement 100  97  94  94  98  100  103  101  98  104  105  108 

Fraud,  also  when  repeated.  11 2  108  95  88  92  92  92  93  90  88  102  121 

Malicious  mischief 88  92  98  108  log  106  104  104  103  101  99  88 

This  table  is  based  upon  the  criminal  statistics  for  the  period 
from  1883  to  1892.  It  shows  clearly  that  the  maxima  for  all  of 
the  crimes  against  the  person,  except  infanticide,  during  this 
period  came  during  the  warmer  months,  while  all  of  the  maxima 
for  the  crimes  against  property  came  during  the  colder  months. 

The  above  tables  contain  only  a  small  part  of  the  vast  mass  of 
statistics  which  have  been  gathered  with  respect  to  the  influence 
of  climate  and  season  upon  crime.  But  there  is  an  important 
exception  to  the  usual  form  of  this  influence.  Statistics  have 
been  gathered  which  indicate  that  in  tropical  countries  crimes 
against  the  person  do  not  increase  during  the  warmer  seasons, 
as  happens  in  the  countries  in  the  temperate  zones.  In  tropical 
countries  the  temperature  is  high  the  year  around,  but  becomes 
excessively  high  during  the  warmer  seasons,  thus  tending  to 
depress  activity  of  all  kinds,  even  acts  of  passion  and  violence. 
Furthermore,  there  is  some  reason  for  believing  that  in  tropical 
countries  crimes  against  property  do  not  increase  during  the 
cooler  seasons  over  their  number  during  the  hotter  seasons  to 
the  same  extent  that  they  increase  in  the  countries  of  the  tem- 

^  G.  Aschaffenburg,  op.  cil.,  p.  17.  Taken  from  the  StatisHk  des  Deutschen 
Reichs,  Neue  Folge  LXXXIII,  II,  p.  52. 


48  CRIMINOLOGY 

perate  zones.  If  this  is  true,  it  is  probably  due  in  large  part 
to  the  fact  that  there  is  not  so  much  variation  in  human  needs 
between  the  hotter  and  the  cooler  seasons  in  the  tropics  as  there 
is  in  the  temperate  zones.  ^ 

Influence  of  the  Weather 

In  addition  to  the  temperature  there  are  other  conditions 
which  go  to  make  up  what  is  ordinarily  called  the  weather  which 
doubtless  have  some  influence  upon  crime.  Among  these  are 
atmospheric  pressure,  winds,  humidity,  sunshine,  rain,  and 
cloudiness.  Unfortunately  the  influence  of  these  conditions  has 
not  been  studied  very  much  as  yet.  One  of  the  best  studies  of 
this  sort  was  made  by  Dexter  ^  of  the  influence  of  the  weather 
upon  a  number  of  kinds  of  crime  in  New  York  City,  the  results 
of  which  he  compared  with  the  results  of  a  similar  study  which 
he  made  in  Denver.  To  the  results  of  these  studies  he  tries  to 
give  a  physiological  and  psychological  explanation. 

Dexter  compared  the  record  of  arrests  for  assault  and  battery  in 
New  York  City,  these  arrests  numbering  about  forty  thousand,  during 
the  years  189 1-7,  with  the  meteorological  conditions  during  the  same 
period.  He  found  ^  that  the  number  of  arrests  increased  quite 
regularly  with  the  rise  in  temperature,  which  led  him  to  the  conclusion 

1  Corre  has  made  an  intensive  study  of  the  relation  between  temperature 
and  crime  in  the  island  of  Guadeloupe  in  the  West  Indies.  He  formulates 
the  law  of  this  relation  in  the  following  terms:  — 

"II  existe  une  connexion  plus  ou  moins  etroite  entre  la  marche  de  la  tem- 
perature et  celle  du  crime,  dans  les  divers  milieux; 

"Dans  les  pays  froids  ou  tcmperes,  c'est  k  dire  k  saisons  bien  tranchees, 
la  chaleur  parait  agir  comme  agent  stimulant:  le  crime  crolt  avec  elle  en 
intensite. 

"Dans  les  pays  chauds  ou  k  saisons  peu  tranch6es,  la  chaleur  parait  agir 
inversement,  et  c'est  quand  elle  presente  une  diminution  dans  ses  moyennes, 
en  meme  temps  que  les  plus  forts  ecarts  entre  ses  extremes,  que  les  crimes 
augmentent;  le  maximum  de  la  criminality  coincide  avec  les  minima  thermi- 
ques."  (A.  Corre,  Fadeurs  g6neraux  de  la  criminaliU  dans  les  pays  crSolcs, 
in  the  Arch,  d'anth.  crim.,  Vol.  IV,  1889,  p.  165.) 

^  E.  G.  Dexter,  Weather  Influences,  An  empirical  study  of  the  mental  and 
physiological  effects  of  definite  meteorological  conditions,  New  York,  1904; 
Conduct  and  the  Weather,  Monograph  Supplement,  No.  10,  The  Psychological 
Review,  May,  1899.  See  also  several  articles  by  the  same  author  in  various 
scientific  journals. 

'  Weather  Influences,  pp.  141^. 


PHYSICAL  ENVIRONMENT  49 

that  "temperature,  more  than  any  other  condition,  affects  the  emo- 
tional states  which  are  conducive  to  fighting."  The  curve  for  the 
females  rose  more  rapidly  than  the  curve  for  the  males  with  the  in- 
crease in  temperature,  which  he  regards  as  "a  suggestion  of  what 
most  of  the  curves  show  where  a  comparison  of  the  two  sexes  is 
made,  —  namely,  a  greater  susceptibiUty  of  women  to  weather  in- 
fluence." Such  irregularities  as  exist  in  the  curves  he  explains  as 
follows:  —  "The  minor  fluctuations  of  the  curves  may  be  disregarded, 
as  they  are  very  probably  due  to  accidents,  but  the  general  showing 
is  one  of  marked  deficiency  for  low  temperature  with  a  somewhat 
gradual  increase  to  its  maximum  excess  in  the  8o°-85°  group,  at  which 
point  a  sudden  drop  takes  place.  This  final  decrease  is  in  itself  in- 
teresting. It  seems  without  doubt  to  be  due  to  the  devitalizing  effect 
of  the  intense  heat  of  85°  and  above." 

In  similar  fashion  he  compared  these  arrests  with  barometrical  con- 
ditions and  found  that  as  the  barometer  fell  the  number  of  arrests 
rose.  He  suggests  that  this  was  not  due  to  the  actual  weight  of  the 
atmosphere,  but  because  low  barometrical  conditions  frequently 
immediately  precede  storms,  and  that  the  "feeling"  of  an  approaching 
storm  caused  in  many  persons  the  emotional  state  which  led  to  fight- 
ing. Little  difference  appeared  here  between  the  effects  upon  the 
two  sexes. 

With  respect  to  humidity  he  found  "excesses  of  assaults  for  low 
readings  and  deficiencies  for  high  ones."  He  explains  this  on  the 
ground  that  "days  of  high  humidity  are  not  only  emotionally  but 
vitally  depressing,  and  we  have  the  same  element  entering  into  our 
problem  that  we  had  in  the  discussion  of  excessively  high  temper- 
atures. On  such  days  we  perhaps  feel  like  fighting,  but  such  a  thing  is 
altogether  too  much  exertion,  and  the  police  records  are  none  the 
wiser.  For  low  humidities,  energy  is  at  a  surplus;  and  although  the 
emotional  state  is  ordinarily  much  more  positive,  it  would  seem  as  if, 
in  the  long  run,  with  plenty  of  strength  at  command,  an  oppor- 
tunity to  use  it  is  generally  to  be  found."  The  females  seemed  to 
be  restrained  from  fighting  by  the  high  humidities  more  than  the 
males. 

With  respect  to  wind,  his  curves  showed  him  that  "the  mild  winds 
of  between  150  and  200  miles  per  day  (40  per  cent,  of  the  days  of  the 
year  have  such)  are  the  pugnacious  ones."  During  periods  both  of 
calm  and  of  high  wind  the  number  of  arrests  fell.  He  does  not  attempt 
to  explain  why  high  wind  has  this  effect.  But  he  thinks  that  during 
calm  there  is  an  excess  of  carbon  dioxide  in  the  atmosphere  which 
lessens  the  vitality. 

With  respect  to  the  character  of  the  day  as  to  fairness  and  cloudiness 
he  found  that  "  the  cloudy  days  are  the  freest  from  personal  encounter 


5©  CRIMINOLOGY 

which  has  attracted  the  police."  He  explains  this  on  the  ground  that 
"the  cloudy  days  are  not  the  vitalizing  ones,  but  the  reverse." 

This  study  of  assaults  in  New  York  he  compares  with  a  similar 
study  of  184  murders  in  Denver  during  the  years  1884-96.  With 
respect  to  temperature  and  weight  of  atmosphere  his  results  were 
about  the  same  as  in  New  York.  But  with  respect  to  humidity  he 
found  that  murders  increased  during  excessively  dry  periods.  This, 
he  thinks,  is  due  to  the  increased  potential  of  atmospheric  electricity 
in  the  excessively  dry  Colorado  atmosphere.  He  found  also  that  mur- 
ders increased  with  high  winds,  and  thinks  that  this  also  is  due  to 
"the  super-induced  electrical  potential  of  the  atmosphere  which  in- 
creases with  the  wind."  As  to  the  character  of  the  day,  he  found  that 
murders  were  more  frequent  on  cloudy  and  wet  days.  He  thinks  that 
this  is  due  to  the  fact  that  such  days  are  unusual  in  the  Colorado 
climate,  and  consequently  affect  the  emotions  in  such  a  way  as  to 
produce  a  mental  state  of  great  instabiHty  in  which  dangerous  im- 
pulsive acts  are  liable  to  be  committed. 

Dexter  also  studied  drunkenness  in  New  York  City.^  His  data 
were  the  arrests  for  intoxication,  44,495  in  number,  in  the  Borough  of 
Manhattan  during  the  years  1893-5.  With  respect  to  temperature 
he  found  "a  deficiency  for  the  hot  summer  months,  and  a  correspond- 
ing excess  for  the  colder  ones  of  winter,  there  being  47  per  cent,  less  for 
July  than  for  December,  with  a  somewhat  gradual  change  from  one 
to  the  other."  The  results  with  respect  to  other  meteorological  con- 
ditions were  not  so  significant,  and  he  summarizes  the  results  of  his 
investigation  of  drunkenness  in  New  York  as  follows:  —  "Arrests  for 
drunkenness  are  far  more  prevalent  during  the  colder  months  of  the 
year  than  during  the  warmer;  vary  inversely  as  the  temperature, 
being  excessive  for  low  and  deficient  for  high  readings  of  the  thermom- 
eter; are  but  slightly  affected  by  varying  atmospheric  pressure, 
though  are  somewhat  above  the  normal  for  conditions  of  high  barom- 
eter; increase  as  both  the  humidity  and  the  wind  increase;  show  slight 
influences  from  days  of  different  character,  though  are  somewhat 
excessive  for  clear,  dry  days." 

Dexter  studied  a  number  of  other  forms  of  conduct  in  their  relation 
to  the  weather,  such  as  the  deportment  of  children  in  schools,  of 
delinquents  in  prisons  and  of  the  insane  in  asylums;  suicides;  clerical 
errors,  etc.  I  have  not  the  space  to  summarize  aU  of  these  investiga- 
tions, but  will  quote  his  summary  of  his  study  of  suicide.  "  Suicide  is 
most  prevalent  in  the  late  spring  and  summer  months;  is  excessive  at 
both  extremes  of  temperature,  and  somewhat  above  the  normal  for 
days  of  moderate  heat;  is  excessive  in  medium  pressure  of  the  air, 

1  Op.  ciL,  pp.  219/. 


PHYSICAL  ENVIRONMENT  51 

and  deficient  for  the  extremes  of  pressure;  increases  with  regularity 
as  humidity  and  wind  increase  from  a  deficiency  of  low  readings  of 
both;  is  excessive  for  clear,  dry  days."  ^ 

Dexter  derived  a  number  of  conclusions  from  his  investiga- 
tions which  I  will  quote  briefly.  ^  "  Varying  meteorological  con- 
ditions affect  directly,  though  in  different  ways,  the  metabolism  of 
life.  .  .  .  Some  of  them  seem  to  be  of  such  a  character  as  to 
accelerate  the  vital  processes  of  oxidation,  and  others  to  retard 
them.  For  want  of  better  terms,  I  shall  call  the  former  anabolic, 
the  latter  katabolic,  conditions.  High  temperature,  high  winds 
(better  ventilation),  fair  days  with  low  humidities  as  an  accom- 
paniment, are  anabolic;  while  low  temperatures,  high  baromet- 
ric conditions,  calms,  rainy  and  cloudy  days  and  high  humidities, 
because  of  their  opposite  characteristics,  are  katabolic.'"  "  The 
'reserve  energy^  capable  of  being  utilized  for  intellectual  processes 
and  activities  other  than  those  of  the  vital  organs  is  affected  most  by 
meteorological  changes. ^^  ''The  quality  of  the  emotional  state  is 
plainly  influenced  by  the  weather  states.  .  .  .  Although  meteorologi- 
cal conditions  affect  the  emotional  states,  which  without  doubt  have 
weight  in  the  determination  of  conduct  in  its  broadest  sense,  it 
would  seem  that  their  effects  upon  that  portion  of  the  reserve  energy 
which  is  available  for  action  are  of  the  greatest  import."  "Those 
meteorological  conditions  which  are  productive  of  misconduct  in  a 
broad  sense  of  the  word  are  also  productive  of  health,  and  mental 
alertness:  as  a  corollary,  misconduct  is  the  result  of  an  excess  of 
reserve  energy,  not  directed  to  some  useful  purpose.  .  .  .  On  the 
whole,  it  would  seemingly  be  safe  to  say  that  of  the  activities  (or 
cessation  of  activity)  possible  to  human  beings  some  are  the  re- 
sult of  excessive  vitality,  and  others  of  a  deficiency;  and  that  gen- 
erally speaking,  those  misdemeanors  which  have  been  classed 
under  our  study  as  those  of  Conduct  are  the  results  of  the  for- 
mer, while  sickness  and  death  are  accompaniments  of  the  lat- 
ter." 

Meteorological  Factors  Mingled  with  Cultural  Forces 

It  is  indeed  difficult  to  disentangle  the  influence  of  a  single 
meteorological  condition  from  the  influence  of  other  meteoro- 
logical conditions  and  cultural  forces  which  affect  human  con- 

1  Op.  cU.,  p.  218.  2  Op.  cit.,  p.  266/. 


52  CRIMINOLOGY 

duct.  It  is  important  to  bear  in  mind  that  while  statistical 
data,  such  as  we  have  been  considering,  may  indicate  a  correla- 
tion between  a  certain  meteorological  condition  and  a  certain 
kind  of  conduct,  this  does  not  necessarily  mean  that  this  condi- 
tion is  the  direct  cause  of  the  conduct.  It  may  determine  the 
cause  of  the  conduct.  Or  it  may  be  a  result  of  something  from 
which  also  results  the  cause  of  the  conduct.  In  fact,  correla- 
tion may  be  due  to  various  relations  other  than  a  direct  causal 
relation. 

Dexter  apparently  believed  that  criminal  conduct  results 
in  the  main  from  excessive  vitality  which  is  misdirected.  It  is 
unfortunate  that  he  did  not  study  a  wider  range  of  criminal 
conduct.  The  forms  of  conduct  which  he  studied  were  mainly 
acts  of  disorderliness  or  of  violence,  such  as  crimes  against  the 
person.  It  was  perhaps  to  be  expected  that  meteorological 
conditions  would  exhibit  much  influence  upon  these  forms  of 
conduct.  If  he  had  studied  crimes  against  property,  for  ex- 
ample, he  would  perhaps  have  discovered  that  these  crimes  are 
due  rather  to  a  deficiency  of  vitaHty  which  leads  certain  in- 
dividuals into  dishonest  conduct  in  the  place  of  the  more 
arduous  honest  methods  of  securing  the  things  they  desire. 

Furthermore,  it  is  evident  in  connection  with  the  forms  of 
conduct  studied,  as  Dexter  himself  points  out,  that  excess  of 
vitality  does  not  lead  every  person  into  these  forms  of  conduct, 
but  that  on  the  contrary  it  leads  many  individuals  into  conduct 
of  the  highest  excellence.  It  is  when  this  vitahty  is  misdirected 
that  it  results  in  the  abnormal  and  pathological  forms  of  conduct. 
Hence  it  is  necessary  to  search  for  the  causes  of  the  misdirecting 
elsewhere  than  in  the  meteorological  conditions,  and  this  search 
will  bring  us  closer  to  the  immediate  causes  of  criminal  conduct. 
We  shall  find  these  causes  in  some  cases  in  abnormal  congenital 
traits,  in  other  cases  in  abnormal  traits  which  have  developed 
in  the  individual,  in  still  other  cases  in  environmental  conditions 
of  an  unusual  nature. 

But  climate  and  weather  have  effects  upon  human  beings 
other  than  those  mentioned  above,  which  cannot  be  measured 
by  statistical  methods.  For  example,  in  New  York  City,  as 
over  a  large  part  of  this  country,  the  climate  is  characterized 
by  great  extremes  of  temperature,  ranging  from  the  extreme 
heat  of  summer  to  the  extreme  cold  of  winter.    Furthermore, 


PHYSICAL  ENVIRONMENT  53 

great  cnanges  in  temperature  sometimes  come  very  suddenly. 
These  climatic  conditions  give  rise  to  a  certain  amount  of  nerv- 
ousness and  irritability  which  leads  in  some  cases  to  crime. 
But  it  is  impossible  to  correlate  this  nervous  state  directly  with 
the  meteorological  conditions  which  give  rise  to  it  in  large  part. 

Furthermore,  climate  and  weather  have  much  influence  upon 
criminal  conduct  apart  from  their  direct  effect  upon  human 
beings,  namely,  through  their  influence  upon  industrial  and 
social  conditions  in  general.  For  example,  to  take  a  specific 
instance,  the  activities  of  a  pickpocket  depend  almost  entirely 
upon  the  existence  of  large  crowds  of  people.  As  I  write  these 
words,  a  heavy  thunder  shower  is  pouring  down,  and  has  driven 
almost  every  one  from  the  usually  crowded  city  street.  Ex- 
treme cold  is  likely  to  have  the  same  effect.  So  that  the  weather 
governs  to  a  large  extent  the  activities  of  pickpockets. 

To  take  a  much  more  important  instance,  there  are  many 
occupations  which  are  seasonal  in  their  nature  in  the  sense  that 
there  is  a  great  deal  of  work  in  these  seasonal  occupations  during 
certain  seasons,  and  much  less  or  none  at  all  during  the  rest 
of  the  year.  A  person  engaged  in  one  of  these  occupations  will 
be  unemployed  during  a  part  of  the  year,  unless  he  can  secure 
employment  temporarily  in  another  occupation.  Inasmuch 
as  these  seasonal  occupations  have  not  as  yet  been  dovetailed 
with  each  other  to  any  great  extent,  much  unemplo)anent  re- 
sults from  their  seasonal  character.  In  Chapter  VI  will  be 
described  the  influence  of  unemployment  and  various  other 
economic  conditions  upon  crime. 


CHAPTER  V 

URBAN  AND  RURAL  CRIME  AND  VICE  — 
DEMOGRAPHIC  FACTORS 

Influence  of  demographic  conditions  —  Apparent  preponderance  of  urban 
over  rural  criminality — Forces  which  accentuate  urban  criminality: 
the  concentration  of  population  increases  human  desires,  causes  greater 
conflict  of  individual  interests,  intensifies  the  struggle  for  existence, 
and  creates  more  opportunities  for  crime  —  The  organization  of  vice 
in  cities  —  Unorganized  vice  in  the  country  —  Influence  of  the  growth 
of  population  upon  crime. 

All  social  phenomena  are  influenced  by  the  density  and  dis- 
tribution of  population.  Civilization  itself  could  not  have 
evolved  until  the  human  population  had  attained  a  relatively 
high  degree  of  density.  In  the  sparse  populations  of  prehis- 
toric peoples  and  of  the  primitive  peoples  which  have  survived 
down  to  the  present  day,  conditions  with  respect  to  crime  have 
been  somewhat  as  described  in  the  chapter  on  the  origin  and 
evolution  of  crime. 

In  a  region  newly  settled  by  civilized  men  frontier  conditions 
prevail  until  the  population  becomes  relatively  dense.  The 
criminality  of  these  frontier  communities  is  usually  of  a  rough 
and  boisterous  sort,  such  as  banditry  and  brigandage.  The 
corresponding  crime  on  the  sea  is  piracy.  But  these  frontier 
conditions  are  ordinarily  transitory  in  their  nature.^  Only 
in  a  few  backward  countries,  such  as  Corsica,^  Turkey,  etc.,  do 
these  conditions  persist  for  a  long  time. 

The  concentration  of  population  is  of  even  greater  signifi- 
cance for  the  study  of  crime.  This  concentration  takes  the  form 
of  towns  and  cities.    All  of  these  urban  commimities  will  be 

'  Speaking  of  crime  in  civilized  countries  (Europe  in  particular)  in  rela- 
tion to  density  of  population,  Lombroso  says  that  "theft  increases  with 
density,  while  homicide  diminishes."  (C.  Lombroso,  Crime,  lis  Causes  and 
Remedies,  Boston,  igii,  pp.  59-60.) 

^  Cf.  A.  Boumet,  La  criminalilS  en  Corse,  in  the  Arch,  d'anth.  crim..  Vol. 
III.  1888,  pp.  6-31. 


URBAN  AND  RURAL  CRIME   AND  VICE  55 

designated  as  cities  in  this  chapter.  The  crime  and  vice  of  cities 
exhibit  peculiarities  as  contrasted  with  the  crime  and  vice  of 
rural  districts.  I  shall,  therefore,  devote  this  chapter  mainly 
to  a  comparison  of  iirban  and  rural  crime  and  vice. 

Apparent  Preponderance  of  Urban  over  Rural 
Criminality 

There  is  a  widespread  opinion  that  there  is  a  great  preponder- 
ance of  crime  and  vice  in  urban  as  compared  with  rural  com- 
munities. It  is  impossible  to  make  an  accurate  comparison  so 
far  as  vice  is  concerned,  owing  to  the  secret  nature  of  a  good  deal 
of  vice.  This  opinion  so  far  as  it  concerns  vice  is  based  upon 
the  fact  that  there  appears  to  be  much  more  prostitution,  drunk- 
enness, gambling,  etc.,  in  cities  than  in  the  country. 

With  respect  to  crime  also  it  is  difficult  to  make  an  accurate 
comparison,  though  there  are  some  statistics  which  may  be 
used  for  this  purpose.  These  statistics  seem  to  indicate  that 
the  city  is  more  criminal  than  the  country.  For  example,  it 
has  been  estimated  that  the  proportion  of  the  urban  to  the  rural 
population  in  Italy  (Annuar.  Stat.,  1881,  p.  112)  was  32  to  68, 
but  that  in  criminality  they  were  more  nearly  alike,  the  pro- 
portion being  43  to  57.  In  other  words,  the  urban  population 
had  a  larger  percentage  of  the  criminality  of  the  country  than  of 
the  population.  In  similar  fashion  it  has  been  estimated  in 
France  (Compte  gener.,  1880)  that  while  the  urban  population 
is  only  about  30  per  cent  of  the  whole  population,  it  has  about 
the  same  mmiber  of  crimes  as  the  rural  population.^  It  has 
been  estimated  in  Germany  that  in  cities  and  districts  with 
more  than  20,000  inhabitants  there  are  134.2  criminals  per 
100,000  adults  in  the  population,  while  in  the  rural  districts 
there  are  only  96.6.^ 

Such  statistics  are,  to  be  sure,  not  conclusive.  It  may  be  that 
crimes  are  not  pursued  in  the  rural  districts  so  effectively  as  they 
are  in  the  city,  so  that  the  record  of  rural  crimes  is  more  incom- 
plete than  that  of  urban  crimes.  Owing  to  inefficient  police 
protection  this  has  usually  been  true  in  the  rural  communities 

^  Cf.  A.  von  Oettingen,  Die  Moralstalistik  in  ihrer  Bedeutung  fUr  eine 
Socialethik,  Erlangen,  1882,  p.  499. 

*  G.  Aschaffenburg,  Crime  and  lis  Repression,  Boston,  1913,  p.  62. 


56  CRIMINOLOGY 

in  this  country.  In  fact,  certain  statistics  are  available  which 
seem  to  indicate  that  police  efficiency  in  some  cities  has  lowered 
the  urban  criminal  rate  below  the  rural  rate.  For  example,  in 
1890-1891  in  England  there  were  in  the  counties,  1.20  criminals 
per  1000  of  the  population;  in  the  boroughs,  1.20  criminals  per 
1000  of  population;  and  in  London,  0.41  criminals  per  1000  of 
population.^  The  low  rate  in  London  was  apparently  due  to 
the  fact  that  the  police  were  keeping  a  careful  record  of  the 
thieves,  receivers  of  stolen  goods,  etc.^  It  may  also  happen 
that  some  of  the  rural  criminals  and  nu-al  crimes  are  reported 
in  the  urban  record,  because  the  criminals  are  caught  in  the  city, 
or  the  crimes  are  tried  in  the  city. 

But  even  though  these  statistics  are  not  conclusive,  we  are 
probably  justified  in  assuming  that  there  is  more  crime  in  the 
cities  than  there  is  in  the  country.  This,  however,  does  not  nec- 
essarily mean  that  the  urban  population  is  more  criminal  in 
character  than  the  rural  population.  There  may  be  differences 
between  the  urban  and  rural  environments  which  give  rise  to 
this  difference  in  the  amoimt  of  crime. 

Forces  which  Accentuate  Urban  Criminality 

Social  evolution  has  been  characterized  on  the  whole  by  an 
increase  in  the  amount  of  crime  and  vice.  As  ideas  with  regard 
to  right  and  wrong  conduct  have  developed,  legal  and  social 
conventions  have  appeared,  violations  of  which  constitute 
criminal  and  vicious  acts.  Furthermore,  the  progress  of  civiliza- 
tion has  multiplied  human  desires  and  needs,  and  the  effort  to 
satisfy  these  desires  is  likely  in  many  cases  to  lead  to  criminal 
or  vicious  conduct.  The  increase  in  the  density  of  population 
constantly  creates  new  conditions  in  which  more  regulations  are 
necessary  to  harmonize  the  conduct  of  individuals  with  each 
other.  This  situation  becomes  especially  acute  when  the  popu- 
lation is  highly  concentrated  and  congested  as  in  a  large  city. 
A  good  deal  of  crime  in  a  large  city  is  due  to  violations  of  or- 
dinances with  respect  to  tenements,  factories,  sanitation,  etc., 
which  would  be  absolutely  unnecessary  in  small  communities. 

These  features  of  social  evolution  and  progress  which  in- 

'  England  and  Wales,  Judicial  Statistics,  1891,  p.  x. 

*R.  Mayo-Smith,  Statistics  and  Sociology,  New  York,  1895,  pp.  272-3. 


URBAN  AND   RURAL  CRIME   AND   VICE  57 

crease  the  amount  of  crime  and  vice  have  more  effect  in  urban 
than  in  rural  communities.  The  highest  existing  stage  of  civili- 
zation is  to  be  found  usually  in  the  cities,  and  the  scale  of  desires 
and  needs  of  the  urban  dweller  is  usually  more  extensive  than 
that  of  the  rural  dweller.  So  that  social  evolution  and  progress 
in  general  may  explain  in  part  the  apparent  preponderance  of 
crime  and  vice  in  cities.  This  explanation  cannot  be  proved 
statistically,  but  the  considerations  mentioned  above  suggest  it. 

There  are,  however,  more  immediate  causes  for  this  difference 
between  urban  and  rural  communities.  Owing  to  the  conges- 
tion of  population,  imitation  probably  plays  a  more  important 
part  in  causing  crime  in  the  city  than  in  the  country.  The  news- 
paper accounts  of  crime  aid  greatly  by  furnishing  suggestions 
to  impressionable  minds.  Owing  to  the  suggestibility  of  the 
crowd,  crime  waves  are  more  likely  to  take  place  in  cities  than  in 
the  country. 

Society  is  constantly  becoming  more  complex,  so  that  it  is 
more  and  more  difficult  for  social  groups  to  function  normally. 
This  is  particularly  true  in  the  city,  where  the  social  environment 
is  usually  far  more  complex  than  in  the  country.  Persons  weak 
in  mind  or  in  character  find  it  particularly  difficult  to  adjust 
themselves  to  the  complexity  of  the  urban  environment.  In 
any  organized  society  the  idiots  and  low  grade  imbeciles  cannot 
function  normally,  and  have  to  be  treated  in  a  special  way, 
either  by  being  exterminated  quietly  or  by  means  of  incarcera- 
tion in  prisons  or  by  internment  in  asylums  and  hospitals.  But 
the  high  grade  imbeciles  and  the  high  grade  feebleminded  or 
morons  may  succeed  in  making  their  way  without  any  special 
treatment. 

Let  us  take  the  case  of  a  moron,  for  example.  In  a  rural 
environment  such  a  person  is  likely  to  find  simple  work,  and 
there  are  usually  persons  who  exercize  a  watchful  care  over 
him  or  her.  Furthermore,  there  are  no  difficult  problems  to  be 
solved  or  unusual  temptations  to  be  faced.  At  worst  the  moron 
is  not  likely  to  become  more  than  a  ne'er-do-well  or  possibly  a 
pauper.  But  in  a  city  such  a  person  is  confronted  with  a  much 
more  complex  situation  and  many  more  temptations.  He  or  she 
is  not  so  likely  to  have  relatives  or  friends  to  watch  over  him  or 
her,  or  at  any  rate  these  persons  find  it  more  difficult  to  exercize 
a  watchful  care.    The  result  is  that  the  high  grade  imbecile  and 


58  CRIMINOLOGY 

the  moron  is  much  more  likely  in  the  city  than  in  the  country 
to  become  a  criminal,  a  drunkard,  a  prostitute,  a  mendicant, 
a  vagabond,  or  a  pauper. 

It  is  probably  true  of  several  other  abnormal  types  as  well 
that  they  are  more  likely  to  become  criminal  or  vicious  in  the 
city  than  in  the  country.  For  example,  those  who  are  abnormal 
in  their  instinctive  or  affective  equipment  in  such  a  way  as  to 
lessen  their  resistance  against  certain  kinds  of  anti-social  conduct 
experience  more  temptations  to  such  conduct  in  the  city  than 
in  the  country,  and  therefore  are  more  likely  to  become  criminal 
or  vicious  in  the  city  than  in  the  country. 

To  be  sure,  the  advantage  is  not  always  on  the  side  of  the  rural 
community.  As  I  shall  show  presently,  there  are  certain  kinds 
of  crime  which  are  more  prevalent  in  the  country  than  in  the 
city,  apparently  owing  to  peculiarities  of  the  rural  environment. 
But  while  we  cannot  prove  the  matter  statistically,  it  is  highly 
probable  that  the  urban  environment  stimulates  these  abnormal 
types  to  crime  and  vice  more  than  the  rural  environment. 

The  same  difference  doubtless  exists  for  normal  individuals 
as  well.  Normal  individuals  also  are  confronted  with  more 
difficult  problems  and  more  temptations  in  an  urban  than  in  a 
rural  environment,  and  consequently  a  larger  number  of  them 
are  likely  to  succumb  to  crime  and  vice. 

There  are  many  kinds  of  crime  which  can  be  committed  only 
or  best  in  cities.  For  example,  the  picking  of  pockets  is  a  com- 
mon crime  in  the  city,  whereas  it  would  be  very  difficult  to  prac- 
tise this  crime  in  rural  communities,  partly  because  there  are 
few  crowds  in  which  the  pick-pocket  can  get  close  to  his  victim 
and  commit  his  theft  unobserved,  and  partly  because  it  is 
usually  impossible  for  the  thief  to  disappear  quickly  after  com- 
mitting his  crime.  There  is  a  much  wider  field  for  burglary  in 
the  city  than  in  the  country,  because  there  are  many  more  dwel- 
ling houses  containing  valuable  articles,  and  jewelry  stores, 
banks,  etc.,  containing  valuable  objects  which  are  worth  stealing. 
Furthermore,  it  is  usually  more  feasible  for  the  burglar  to  dis- 
appear quickly  after  committing  his  crime  in  the  city  than  in 
the  country,  where  he  may  have  to  go  a  long  distance  before  he 
can  cover  up  his  tracks.  Blackmail  is  much  more  prevalent  in 
the  city  than  in  the  country,  because  wealthy  victims  are  more 
numerous.     The  field  for  committing  business  crimes  is  much 


URBAN  AND  RURAL  CRIME  AND  VICE  59 

wider  in  the  city  than  in  the  country,  because  commerce  and 
industry  are  centraUzed  in  cities.  Consequently,  embezzlement, 
forgery,  fraud  of  various  kinds,  and  many  other  business  crimes 
are  most  prevalent  in  cities.  Furthermore,  as  has  already  been 
indicated,  there  are  many  so-called  crimes  with  regard  to  tene- 
ments, factories,  highways,  etc.,  which  cannot  be  committed 
at  all  or  only  to  a  very  slight  extent  in  small  communities. 

On  the  other  hand,  there  are  several  crimes  which  are  more 
frequent  in  the  country  than  in  the  city.  For  example,  it  has 
been  estimated  that  there  is  more  infanticide  in  the  country 
than  in  the  city.  The  reason  for  this  is  obvious.  It  is  more 
difficult  in  the  country  for  the  woman,  unmarried  or  married, 
to  get  rid  before  birth  of  a  child  that  is  not  wanted.  There  are 
not  the  midwives  and  doctors  at  hand  who  are  ready  to  procure 
an  abortion.  In  the  cities,  on  the  other  hand,  criminal  abortion 
is  much  more  frequent  than  in  the  country. 

It  has  been  estimated  that  crimes  against  the  person  are  com- 
mitted more  frequently  in  the  country  and  crimes  against  prop- 
erty in  the  city.  In  other  words,  rural  criminality  is  on  the 
whole  more  violent  than  urban  criminality.  Lombroso  expresses 
this  opinion  in  the  following  words:  —  "The  urban  and  the  rural 
districts  have  each  their  own  specific  type  of  criminality.  The 
crimes  in  the  country  are  more  barbarous,  having  their  origin 
in  revenge,  avarice,  and  brutal  sensuality.  In  the  city  the  crimi- 
nality is  characterized  by  laziness,  a  more  refined  sensuality,  and 
by  forgery."  ^  It  has,  however,  unfortunately  been  true  that 
there  have  been  many  crimes  against  the  person  in  American 
cities,  owing  in  part  to  ineffective  police  protection. 

The  progress  of  science  has  aided  the  criminal  more  or  less, 
and  scientific  methods  can  usually  be  applied  most  feasibly  in 
the  city,  as,  for  example,  in  opening  safes,  or  in  making  counter- 
feit money.  Furthermore,  these  methods  are  used  principally 
by  the  professional  criminal,  who  is  the  most  intellectual  type 
of  criminal,  with  the  exception  of  the  political  criminal  and  the 
criminal  by  passion.  The  professional  criminal  carries  on  his 
operations  largely  in  the  city  for  various  reasons,  as,  for  example, 
because  it  is  more  profitable,  and  because  he  prefers  urban  life. 
The  use  of  scientific  methods  by  the  criminal  class  should  be 
more  than  counterbalanced  by  the  use  of  scientific  methods 
*  Crime,  Its  Causes  and  Remedies,  Boston,  191 1,  p.  74. 


6o  CRIMINOLOGY 

by  the  agents  of  the  law.  This  will  probably  happen  in  course 
of  time,  but  the  police  have  not  as  yet  made  extensive  use  of 
scientific  methods. 

There  are  several  reasons  why  criminals  gravitate  toward  the 
cities  for  carrying  on  their  operations,  and  for  purposes  of  resi- 
dence. As  has  already  been  indicated,  a  wider  range  of  crimes 
can  be  committed  in  the  city  than  in  the  country,  many  of  them 
of  the  more  profitable  sort.  As  has  also  been  indicated,  it  is 
usually  more  feasible  for  a  criminal  to  hide  himself  in  a  city 
than  in  rural  communities.  After  committing  a  crime  he  may 
elude  pursuit  more  easily  in  the  maze  of  city  streets,  crowded 
during  the  day  and  deserted  at  night,  and  in  the  numerous  houses 
in  which  he  may  take  refuge;  whereas  in  the  open  highways  of 
rural  districts  he  can  usually  be  pursued  more  easily  with  the  aid 
of  the  telephone  and  be  captured. 

The  city  furnishes  a  more  feasible  residence  for  the  criminal 
than  the  country.  In  a  small  community  it  is  impossible  for  any 
one  to  live  very  long  without  his  occupation  becoming  known  to 
his  neighbors.  Any  one  who  refuses  to  make  his  occupation 
known  soon  becomes  a  suspicious  character,  which  would  be  very 
dangerous  for  the  criminal.  In  the  city,  on  the  contrary,  a  person 
may  live  and  work  unnoticed  by  his  nearest  neighbors,  so  that  it 
becomes  the  function  of  the  police  alone  to  watch  the  criminals 
and  suspicious  persons.  If  the  police  perform  this  function  well, 
the  city  also  will  become  a  dangerous  place  for  the  criminal.  But 
unfortunately  the  police  have  frequently  failed  to  perform  this 
function  efficiently. 

In  addition  to  all  the  reasons  suggested  above  as  to  why  crim- 
inals are  more  likely  to  live  in  cities  rather  than  in  the  country 
is  the  fact  that  a  criminal  usually  finds  city  life  more  agreeable 
than  country  life.  In  the  city  he  finds  the  social  life  of  the  under- 
world, of  the  "Tenderloin,"  which  cannot  possibly  exist  in  the 
country.  As  the  criminal  is  more  or  less  social  like  all  other  hu- 
man beings,  he  craves  a  social  circle  in  which  he  can  move  freely. 
Furthermore,  in  the  city  he  can  indulge  in  many  vicious  practises 
the  enjoyment  of  which  is  not  possible  at  all  or  is  very  limited 
in  the  country.  This  is  due  largely  to  the  fact,  which  I  shall 
discuss  presently,  that  the  means  for  the  enjoyment  of  certain 
vices  can  be  organized  in  the  city  in  a  way  which  is  almost  im- 
possible in  rural  communities.    In  fact,  life  in  a  rural  district 


URBAN  AND  RURAL  CRIME  AND  VICE  6l 

would  be  so  dull  for  most  criminals  that  they  would  have  little 
incentive  to  carry  on  their  criminal  activities  in  order  to  secure 
the  means  for  the  enjoyment  of  the  pleasures  which  they  crave. 

An  additional  reason  for  the  preponderance  of  criminals  in 
cities  may  be  that  the  city  furnishes  a  better  breeding  ground  for 
criminals  than  the  country.  If  the  urban  environment  is  of  such 
a  nature  that  persons  born  in  it  are  more  likely  to  have  the  ab- 
normal and  pathological  traits  which  lead  to  criminality  and 
viciousness,  and  if  the  rearing  they  receive  in  this  environment 
is  less  likely  to  keep  them  from  crime  and  vice  than  the  one  they 
would  receive  in  a  rural  environment,  the  city  furnishes  a  better 
breeding  groimd  for  the  criminal  and  the  vicious  classes  than 
the  country.  I  shall  discuss  this  subject  in  the  chapter  on 
juvenile  criminality. 

Furthermore,  the  immigration  from  the  country  to  the  city 
may  swell  somewhat  the  criminality  of  the  city.  A  large  part 
of  this  immigration  is  young.  It  probably  represents  on  the 
whole  the  better  portion  of  the  rural  population,  because  the 
more  active  and  the  more  intelligent  are  most  likely  to  go  to  the 
city.  But  since  urban  life  is  somewhat  different  from  rural  life, 
and  involves  difficult  problems  of  adjustment,  it  is  necessary 
for  all  of  these  immigrants  to  adjust  themselves  to  the  life  of 
the  city.  Some  of  them,  mostly  of  the  weaker  sort,  though  also 
including  some  of  the  stronger,  will  fail,  and  will  join  the  ranks 
of  the  criminal  and  the  vicious. 

The  reverse  of  this  process  is  not  so  likely  to  happen.  In  the 
first  place,  the  migration  from  the  city  to  the  country  is  usually 
not  so  great  as  in  the  opposite  direction.  In  the  second  place, 
the  urban  immigrants  to  the  country,  while  they  may  not  prosper 
greatly,  are  not  likely  to  become  criminal  and  vicious,  since  the 
opportunities  for  crime  and  vice  are  not  so  numerous  in  the 
country. 

So  that  this  interchange  of  population  between  city  and  coun- 
try is  more  likely  to  swell  the  criminality  and  viciousness  of  the 
city  than  that  of  the  country.  At  any  rate,  that  is  more  likely 
to  be  the  immediate  result.  It  is  well  to  bear  in  mind  that  in 
the  long  run  the  rural  immigration  to  the  city  may  lessen  the 
criminality  and  viciousness,  since  the  immigrants  who  are 
successful  in  the  city  may  do  a  good  deal  to  check  the  forces  for 
urban  criminality  and  vice. 


62  CRIMINOLOGY 

We  have  now  considered  a  number  of  reasons  for  the  assumed 
preponderance  of  crime  and  vice  in  the  city,  especially  with 
regard  to  crime.  Let  us  consider  some  of  the  reasons  for  the 
apparently  larger  amount  of  vice  in  the  city. 

The  Organization  of  Vice  in  Cities 

It  is  evident  that  it  is  more  feasible  to  organize  some  of  the 
vices  in  the  city  than  in  the  country.  For  example,  prostitution 
becomes  highly  commercialized  in  cities  with  an  extensive  system 
for  procuring  the  supply  of  prostitutes  and  plenty  of  capital  for 
the  equipment  of  numerous  houses  of  prostitution.  Expensively 
furnished  gambling  houses  are  established  with  every  possible 
means  for  gambling.  Numerous  saloons  are  established  by  the 
breweries  to  encourage  men  to  drink,  while  numerous  restau- 
rants encourage  both  men  and  women  to  eat  as  well  as  to  drink 
to  excess. 

The  organization  of  vice  is  possible  in  the  city  because  there 
are  present,  on  the  one  hand,  the  vice  enterprizer  with  plenty 
of  capital,  and,  on  the  other  hand,  many  customers.  None  of 
these  are  equally  available  in  small  communities,  though  it  is 
probable  that  the  enterprizer  with  his  capital  would  almost 
always  be  on  hand  if  there  was  sufficient  demand  for  him. 
Furthermore,  there  are  doubtless  many  small  places  in  which 
there  are  enough  would-be  customers  to  make  it  worth  while  for 
the  enterprizer.  But  vicious  enterprizes  are  seriously  handi- 
capped in  rural  communities  because  secrecy  is  not  so  feasible 
as  in  the  city.  Inasmuch  as  these  vicious  practises  usually  labor 
under  social,  moral,  and  sometimes  legal  condemnation,  most 
individuals  do  not  want  it  generally  known  that  they  indulge  in 
them.  In  a  large  city  where  most  of  the  inhabitants  are  known 
each  by  only  a  few  of  his  neighbors,  it  is  usually  feasible  for  an 
individual  to  carry  on  vicious  practises  without  having  it  gen- 
erally known.  But  in  a  small  community  where  each  inhabitant 
is  known  by  most  or  all  of  the  population,  it  is  difficult  for  an 
individual  to  carry  on  many  kinds  of  vicious  practises,  especially 
in  a  village  or  town  where  it  is  organized  for  the  public.  This  is 
doubtless  the  principal  obstacle  in  the  way  of  much  organized 
vice  which  would  otherwise  exist  in  small  places. 

This  situation,  which  decreases  the  amount  of  organized  vice 


URBAN  AND  RURAL  CRIME   AND   VICE  63 

in  the  country,  tends  to  increase  it  in  the  city.  Many  of  those 
who  are  debarred  by  the  lack  of  secrecy  from  indulging  in  vicious 
practises  in  small  places  come  to  the  city  for  this  enjoyment. 
So  that  in  every  large  city  vice  is  organized  to  a  considerable 
extent  to  supply  the  demand  of  visitors,  and  each  city  is  the 
center  for  the  vicious  activities  of  many  of  the  inhabitants  of  the 
surrounding  region. 

Furthermore,  the  city  furnishes  special  stimuli  for  vice.  It  is 
difficult  for  many  urban  inhabitants  to  secure  healthful  and 
normal  forms  of  enjoyment.  But  all  human  beings  crave  a 
certain  amount  of  pleasure,  and  the  demand  for  pleasure  is 
imperative  in  the  case  of  the  young.  If  normal  pleasures  are  not 
available,  both  adults  and  youth  are  sure  to  adopt  vicious  forms 
of  enjoyment.  In  the  case  of  the  young  the  lack  of  means  of 
enjoyment  is  likely  to  lead  to  crime  as  well  as  to  vice,  in  order  to 
furnish  the  means  of  enjoyment.  This  is  not  so  likely  to  happen 
to  the  adult  who  is  not  already  a  criminal,  but  the  adult  under 
these  circumstances  is  sure  to  fall  into  vicious  habits. 

Another  feature  of  the  city  which  gives  rise  to  a  certain 
amount  of  vice  is  the  nervous  strain  of  urban  life.  In  the  city 
the  individual  is  subjected  to  many  stimuli  which  are  very  tiring 
to  the  nerves.  Some  persons  will  succumb  to  the  temptation  to 
sooth  their  nerves  with  drugs  or  to  stimulate  them  with  in- 
toxicants. 

I  have  indicated  how  poverty  may  lead  to  vice  through  lack 
of  normal  means  of  recreation.  But  wealth  also  may  lead  to 
vice,  though  in  different  ways  and  for  different  reasons.  The 
ability  to  satisfy  any  desire  however  vicious  belongs  to  the 
wealthy,  while  frequently  a  surfeit  of  normal  pleasures  creates 
a  desire  for  abnormal  and  vicious  pleasures.  As  the  wealthy 
live  in  the  large  cities  much  more  than  in  small  places,  wealth 
tends  to  swell  vice  in  cities  much  more  than  in  rural  commun- 
ities. 

In  connection  with  the  subject  of  poverty  and  wealth  as 
causes  of  vice  it  may  be  well  to  call  attention  to  the  fact  that  the 
economic  struggle  for  existence  is  probably  more  bitter  in  the 
city  than  in  the  country.  Under  the  present  economic  organiza- 
tion of  society  there  emerge  from  this  struggle,  on  the  one  hand, 
those  who  are  successful  and  acquire  great  wealth,  which  leads 
to  a  certain  amount  of  vice  though  not  so  much  to  crime,  and, 


64  CRIMINOLOGY 

on  the  other  hand,  the  large  number  who  are  unsuccessful,  whose 
poverty  leads  to  much  crime  and  vice. 

Unorganized  Vice  in  the  Country 

In  this  chapter  I  have  described  some  of  the  factors  for 
crime  and  vice  in  cities.  In  all  probability  there  is  more  crime 
in  urban  than  in  rural  communities.  This,  however,  does  not 
mean  necessarily  that  the  urban  population  is  more  criminal  by 
nature  than  the  rural  population,  for,  as  we  have  seen,  it  is  due 
probably  to  peculiar  features  of  the  urban,  environment.  There 
are  also  forces  for  vice  in  cities  which  do  not  exist  at  all  or  to  the 
same  extent  in  rural  communities.  However,  it  is  by  no  means 
certain  that  there  is  more  vice  in  cities  than  in  the  country. 
There  may  be,  for  reasons  I  have  discussed,  more  organized 
vice  in  cities,  but  there  may  be  as  much  or  even  more  unor- 
ganized vice  of  the  same  kinds  in  the  country.  For  example, 
gambling  houses  may  not  be  found  in  rural  communities,  but 
there  is  much  betting  and  petty  gambling  of  various  sorts.  In 
fact,  gambling  may  even  become  somewhat  organized,  as  in 
connection  with  horse  racing  at  the  country  fairs.  Saloons  may 
not  be  so  common  in  the  rural  communities  as  in  the  cities,  but 
there  is  a  good  deal  of  intemperance  in  rural  homes  nevertheless. 

Furthermore,  there  are  many  vices  which  can  be  carried  on  in 
secret  and  not  become  publicly  known  like  crime.  There  are 
also  many  vices  which  frequently  pass  unnoticed  as  such.  It  is 
obviously  impossible  to  estimate  the  exact  amount  of  unor- 
ganized vice  in  the  country  as  compared  with  the  city,  but  it  is 
possible  that  there  is  as  much  or  more  of  it  in  the  country. 
Excessive  and  malicious  gossiping,  scandal  mongering,  back- 
biting, nagging,  bigotry,  unscrupulous  cunning  in  commercial 
transactions,  etc.,  should  be  rated  as  vicious,  and  it  is  very 
probable  that  the  rural  population  with  its  narrower  outlook  and 
range  of  interests  is  more  vicious  in  these  respects  than  the 
urban  population. 

Influence  of   the   Growth  of  Population  upon   Crime 

Before  closing  this  chapter  I  wish  to  point  out  the  significance 
of  the  growth  of  population  with  relation  to  crime.  If  the  pop- 
ulation increases  more  rapidly  than  the  production  of  wealth, 


URBAN  AND  RURAL  CRIME   AND   VICE  65 

the  standard  of  living  falls,  and  poverty  and  its  attendant  evils 
increase.  In  other  words,  the  economic  welfare  of  the  community 
diminishes.  Inasmuch  as  the  reproductive  power  of  mankind 
is  very  great,  it  is  the  tendency  of  population  to  be  pressing  con- 
stantly upon  the  means  of  subsistence,  and  thus  to  increase 
economic  misery.  Consequently,  rapid  growth  of  population  is 
likely  to  accentuate  the  economic  factors  for  crime. 

In  another  work  I  have  discussed  at  considerable  length  the 
influence  of  the  growth  of  population  upon  economic  welfare,^ 
and  will,  therefore,  cite  a  few  of  the  conclusions  in  that  book:  — 

"In  our  modern  civilized  world  there  is  needed  on  the  whole, 
if  not  restriction  of  population,  at  any  rate  a  greater  moderation 
in  the  rate  of  increase  than  has  been  true  during  the  past  cen- 
tury. It  may  be  possible  to  justify  this  upon  the  ground  alone 
of  the  danger  of  reaching  the  ultimate  limit  of  subsistence.  But 
even  if  we  grant  that  such  a  time  is  a  long  way  off,  so  that  it  is 
not  of  practical  importance  now,  other  reasons  for  advocating 
such  restrictions  still  remain.  We  have  seen  that  it  might  be 
more  feasible  to  remedy  the  distribution  of  wealth  if  population 
was  not  increasing  so  rapidly.  But  a  more  certain  and  obvious 
reason  is  that  if  the  population  were  not  increasing  so  rapidly, 
the  general  standard  of  living  would  be  more  likely  to  go  up  or 
to  go  up  more  rapidly,  and  while  the  poor  might  not  benefit  by 
this  at  once,  or  at  any  rate  would  not  reach  this  standard  at  once, 
there  would  be  more  reason  to  hope  that  most  if  not  all  of  them 
would  attain  it  ultimately."    (Pp.  177-178.) 

"So  that  we  should  judge  the  increase  of  population  with 
relation  to  two  things,  namely,  the  maintenance  and  progressive 
rise  of  the  standard  of  living,  and  the  diminution  of  poverty  and 
its  attendant  evils.  To  do  this  we  must  keep  constantly  in  mind 
the  progress  of  the  arts  and  sciences  and  the  accumulation  of 
capital,  as  well  as  the  supply  of  natural  resources.  The  in- 
crease of  population  furnishes  a  larger  supply  of  labor.  But  if 
population  increases  faster  than  the  amount  produced  can  be 
increased  with  the  aid  of  science  and  the  use  of  capital,  it  is 
evident  that  the  general  standard  of  living  must  be  depressed, 

*  Poverty  and  Social  Progress,  New  York,  1916.  See  especially  the  chap- 
ters on  "The  Growth  of  Population  and  the  Increase  of  Wealth,"  "Popula- 
tion and  Poverty,"  and  "The  Raising  of  Wages  and  the  Regulation  of  the 
Labor  Supply." 


66  CRIMINOLOGY 

and  it  will  become  increasingly  difficult  to  lessen  poverty  while 
there  will  be  great  danger  that  it  will  increase.  We  shall  be  in  a 
better  position  to  abolish  unemployment,  sweating,  and  the 
other  causes  of  poverty,  if  the  general  standard  of  living  can  be 
maintained  and  constantly  raised."    (P.  182.) 

"The  tendency  of  population  is  to  increase  more  rapidly  than 
it  is  the  tendency  of  industry  to  expand,  under  the  existing 
system  of  private  industrial  enterprize.  Consequently,  there  is  a 
large  surplus  of  unemployed  labor,  and  bitter  competition  among 
those  at  work  tends  to  keep  down  the  rate  of  wages.  It  is  ob- 
vious, therefore,  that,  by  eliminating  this  surplus  and  reducing 
the  supply  of  labor  in  proportion  to  the  other  factors  of  produc- 
tion, unemployment  can  be  prevented  in  large  part,  and  the 
rate  of  wages  can  be  raised. 

"There  are  several  ways  in  which  this  can  be  accomplished. 
The  fundamental  method  is  by  the  artificial  control  of  the  birth 
rate,  which  will  prevent  the  supply  of  labor  from  increasing  more 
rapidly  than  the  other  factors  of  production.  We  have  already 
discussed  the  stupid  and  brutal  restrictions  upon  the  artificial 
control  of  births  in  this  country  and  elsewhere.  We  have  shown 
that  these  restrictions  are  based  upon  religious  and  moral  pre- 
judices and  social  and  economic  fallacies,  which  are  probably 
fostered  by  those  to  whose  interest  it  is  to  exploit  the  working 
class.  Few  changes  could  be  of  greater  value  to  society  at  large 
and  to  the  poorer  classes  in  particular  than  the  abolition  of  these 
restrictions  and  the  widespread  dissemination  of  the  necessary 
knowledge  for  the  artificial  control  of  births.  A  characteristic 
feature  of  social  progress  and  of  cultural  evolution  is  the  in- 
creasing control  by  man  of  the  forces  which  determine  his  wel- 
fare. One  of  the  most  important  of  these  forces  is  the  rate  of 
increase  of  population.  It  is  time  for  man  to  acquire  control  of 
this  factor."    (Pp.  372-373.) 


CHAPTER  VI 
THE  ECONOMIC  BASIS  OF  CRIME 

The  economic  struggle  for  existence  —  Economic  changes  and  crime:  sea- 
sonal fluctuations;  the  trade  cycle;  prices;  wages  —  The  economic 
crimes:  crimes  against  property  —  The  economic  status  of  the  crim- 
inal —  Economic  classification  of  criminals  —  Occupational  distribu- 
tion of  criminals  —  Professional  criminality  —  Influence  of  economic 
organization  upon  crime  —  Poverty  and  crime  —  The  standard  of 
living  and  crime  —  Wealth  and  crime  and  vice. 

Like  every  other  animal  species  mankind  is  engaged  in  a 
struggle  for  existence.  This  is  true  both  of  the  human  species 
as  a  whole  and  also  of  individual  human  beings  amongst  them- 
selves. But  cultural  evolution  has  given  the  human  struggle 
for  existence  an  unusually  specialized  and  complex  form. 

The  Economic  Struggle  for  Existence 

Owing  largely  to  the  invention  and  use  of  tools,  there  has 
developed  a  highly  differentiated  system  of  division  of  labor. 
This  in  turn  has  led  to  a  complex  system  of  exchange.  As  a 
consequence  most  human  beings  do  not  produce  what  they 
consume,  but  receive  their  subsistence  indirectly  from  the  pro- 
ducers. Furthermore,  the  correlated  systems  of  the  division 
of  labor  and  of  exchange  have  resulted  in  the  formation  of  social 
groups  and  classes  whose  status  and  traits  are  determined  mainly 
by  their  functions  in  the  economic  system.  The  human  struggle 
for  existence  has  therefore  become  in  large  part  an  economic 
struggle,  that  is  to  say,  a  struggle  to  obtain  the  commodities 
needed  and  desired  within  the  system  of  production  based  upon 
the  division  of  labor  and  exchange.  This  struggle,  though  it 
becomes  more  complex  and  indirect  in  its  character,  is  no  less 
bitter  than  it  is  among  many  animal  species,  and  is  as  all- 
pervasive.  It  touches  upon  and  influences  every  important 
aspect  of  the  life  of  mankind.  It  is  of  special  significance  with 
respect  to  criminal  activity,  for  some  of  this  activity  doubtless 


68  CRIMINOLOGY 

arises  directly  out  of  the  economic  struggle,  while  most  if  not 
all  of  it  is  conditioned  by  the  economic  environment. 

There  has  been  much  difference  of  opinion  as  to  the  influence 
of  economic  forces  upon  crime.  Some  have  thought  that  crime 
is  due  entirely  to  economic  factors.  Others  have  asserted  that 
economic  conditions  have  little  or  nothing  to  do  with  the  causa- 
tion of  crime.  As  a  matter  of  fact,  it  is  a  difficult  problem  to 
solve  on  account  of  the  complexity  of  the  factors  involved. 
These  include  the  forces  of  the  physical  environment  (climate, 
season,  topography,  etc.),  the  biological  factors,  and  the  social 
factors,  such  as  the  economic  and  the  political.  To  disentangle 
these  different  categories  of  forces  and  appraize  accurately  their 
relative  influence  in  the  causation  of  crime  is  a  difficult  if  not 
an  impossible  task. 

The  criminality  of  any  time  and  place  is  conditioned  and  to  a 
certain  extent  determined  by  the  existing  economic  system. 
Where  the  methods  of  production  are  not  highly  developed,  so 
that  the  wealth  of  the  community  is  limited,  the  living  condi- 
tions will  be  of  the  rude  sort  which  are  likely  to  encourage 
crimes  against  the  person.  As  the  methods  of  production  be- 
come more  complex  and  wealth  increases,  more  crimes  against 
property  become  possible. 

We  are  interested  in  ascertaining  the  direct  and  immediate 
influence  of  economic  forces  upon  criminality.  Several  methods 
may  be  used  in  studying  this  problem.  In  the  first  place,  we 
may  correlate  fluctuations  in  the  amount  of  crime  with  eco- 
nomic changes.  In  the  second  place,  we  may  study  the  eco- 
nomic crimes,  namely,  the  crimes  in  which  economic  motives 
are  obviously  or  apparently  predominant.  In  the  third  place, 
we  may  study  the  economic  status  of  the  criminal,  namely, 
the  economic  classes  with  respect  to  the  distribution  of  wealth 
and  the  occupations  to  which  they  belong.  In  the  fourth  place, 
we  may  study  professional  criminality,  namely,  the  criminal- 
ity of  those  who  make  the  committing  of  crimes  a  profession 
and  occupation.  In  connection  with  these  methods  of  studying 
the  problem  we  shall  have  occasion  to  study  various  economic 
phenomena  and  conditions,  such  as  the  extreme  variations  in 
the  distribution  of  wealth,  the  economic  pressure  due  to  poverty 
as  leading  to  crime  in  the  effort  to  avoid  starvation  or  to  secure 
a  higher  standard  of  living,  unemployment,  low  wages,  mendi- 


THE   ECONOMIC   BASIS   OF   CRIME  69 

cancy,  vagrancy  and  other  forms  of  dependency  as  leading  to 
crime. 

Economic  Changes  and  Crimes 

In  Chapter  IV  it  has  been  shown  that  while  crimes  against 
the  person  increase  with  the  seasonal  rise  in  temperature,  crimes 
against  property  increase  with  the  seasonal  fall  in  temperature. 
Consequently,  the  largest  number  of  crimes  against  property 
take  place  during  the  winter  months,  while  the  largest  number 
of  crimes  against  the  person  take  place  during  the  summer 
months.  I  have  already  presented  some  statistics  with  re- 
spect to  these  seasonal  fluctuations,  and  will  now  present  a  few 
more  with  respect  to  the  seasonal  fluctuations  in  the  number 
of  crimes  against  property, 

Lacassagne  has  prepared  a  criminal  calendar  which  shows  the 
seasonal  distribution  of  crimes  in  France: —  ^ 

Seasonal   Distribution   of   Crimes   Against   Property   in   France, 

1827-1870 

Number  of  Crimes  Against  Property  for  Each  Month,  Reduced  to  an  Equal 
Duration  of  31  Days 

January 16,350 

February 15,400 

March 14,250 

April. 13.450 

May 13,625 

June 13450 

July 13.225 

August 13.425 

September 13.875 

^  October 14,400 

November 16,100 

December 16,825 

The  above  table  indicates  that  the  number  of  crimes  against 
property  in  France  is  highest  in  the  following  order  during  the 
months  of  December,  January,  November,  February,  October, 
and  March;  and  is  lower  during  the  remaining  months  of  the 
year.  In  other  words,  crimes  against  property  are  more  numer- 
ous during  the  autumn  and  winter  than  they  are  during  the 

'  A.  Lacassagne,  Marche  de  la  criminaliU  en  France  de  1825  d  1880,  in  the 
Revue  scienlifique,  May  28,  1881,  pp.  674-684, 


7©  CRIMINOLOGY 

spring  and  summer.  The  average  for  the  summer  months  is 
13,367,  for  the  spring  months  is  13,775,  for  the  fall  months  is 
14,792,  and  for  the  winter  months  is  16,192,  thus  showing  a 
steady  increase  from  the  hottest  to  the  coldest  season. 

The  following  table  indicates  the  seasonal  distribution  of 
certain  crimes  against  property  in  Germany:  —  ^ 

Seasonal  Distribution  of  Crimes  Against  Property  in  Germany 

Daily  averages  for  each  month  if  the  daily  average  for  the  year  were  100 

Crimes             Years  Jan.  Feb.  Mar.  April  May  June  July  Aug.  Sept.  Oct.  Nov.  Dec. 

Simple  theft 1883-92  113  115  98  85  87  88  88  92  92  106  117  I2i 

Aggravated  theft  ..188 J-92  102  107  92  89  94  98  98  96  94  106  ii3  111 

Embezzlement 1886-92  100  97  94  94  98  100  10.?  101  98  104  105  jo8 

Robbery 1886-92  100  87  78  84  94  98  99  106  84  120  132  116 

Receiving  stolen 

goods 1883-92  123  122  103  82  82  83  80  81  81  100  120  142 

Fraud 1888-92  107  HI  94  89  90  95  95  91  90  102  116  120 

How  then  is  the  preponderance  of  crimes  against  property 
during  the  colder  months  of  the  year  to  be  explained?  The 
first  explanation  which  may  occur  to  the  reader  is  that  the  lower 
temperature  stimulates  the  propensity  to  thieving  and  like 
crimes.  There  is  probably  a  slight  amount  of  truth  in  this 
explanation.  It  is  very  likely  that  the  stimulating  effect  of 
cold  leads  to  greater  criminal  activity,  just  as  it  leads  to  greater 
non-criminal  activity.  But  this  phenomenon  is  doubtless  to  be 
accounted  for  in  the  main  by  the  economic  conditions  which 
prevail  during  the  colder  months.  In  several  of  the  seasonal 
occupations  there  is  little  activity  during  the  colder  months  of 
the  year.  Among  these  are  agriculture,  the  building  trades, 
etc.  There  are,  to  be  sure,  some  seasonal  occupations  which 
are  more  active  during  the  colder  months.  But  there  appears, 
on  the  whole,  to  be  more  activity  and  more  work  available  dur- 
ing the  warmer  months  than  there  is  during  the  colder  months. 
The  statistics  with  regard  to  employment  indicate  that  there 
is  more  unemployment  during  the  colder  months,  and  especially 
towards  the  end  of  the  colder  months,  than  there  is  during  the 
warmer  months.  ^ 

On  the  other  hand,  human  demands  and  desires  increase 

^  Slatistik  des  Deutschen  Reichs,  Neue  Folge,  Band  83,  Kriminalstaiistik 
filr  das  JaJir  l8g4,  Berlin,  1898,  II,  53. 

2 1  have  presented  some  of  these  statistics  in  my  Poverty  and  Social  Prog- 
ress, New  York,  1916,  Chap.  IX. 


THE   ECONOMIC   BASIS   OF   CRIME  71 

considerably  during  the  colder  months.  More  food,  clothing, 
and  shelter  are  needed,  while  it  is  probable  that  the  amusements 
desired  in  winter  are  more  costly  than  those  desired  in  summer. 
So  that  it  is  practically  certain  that  the  preponderance  of  crimes 
against  property  during  the  colder  months  is  due  mainly  to 
greater  destitution,  on  the  one  hand,  and  to  a  higher  degree  of 
economic  pressure  to  expend,  on  the  other  hand. 

But  much  more  extensive  than  the  seasonal  economic  changes 
are  the  changes  that  take  place  in  connection  with  the  trade 
cycle,  and  in  connection  with  industrial  evolution  which  is  due 
to  improvements  in  the  methods  of  production.  The  correla- 
tion between  these  economic  changes  and  criminality  is  revealed 
by  the  statistics  of  fluctuations  in  prices  and  the  statistics  of 
the  number  of  crimes  committed  or  of  the  number  of  criminals 
convicted. 

The  accompanying  charts  indicate  direct  correlation  between 
the  prices  of  wheat  and  crimes  against  property  in  England  and 
Wales  and  in  France,  and  the  prices  of  rye  and  convictions  for 
theft  in  Russia.  ^  These  charts  indicate  that  in  these  countries 
there  is  a  general  tendency  for  crimes  against  property  to  in- 
crease as  the  prices  of  cereals  rise,  and  for  these  crimes  to  de- 
crease as  these  prices  fall.  The  correlation  is  not  always  exact, 
and  there  is  frequently  a  noticeable  lag,  but  this  is  to  be  ex- 
pected since  it  usually  requires  a  little  time  for  the  economic 
changes  to  influence  the  criminality.  Many  more  statistics 
could  be  cited  which  show  that  the  same  situation  exists  in 
other  countries,  and  there  is  good  reason  to  believe  that  this 
correlation  exists  with  a  fair  degree  of  regularity  all  over  the 
world. '^ 

It  would  also  be  possible  to  show  that  inverse  correlation 
exists  between  changes  in  wages  and  crimes  against  property,  so 
that  as  wages  rise  these  crimes  tend  to  decrease,  and  as  wages 
fall  these  crimes  tend  to  increase.  But  this  correlation  is  not 
as  close  or  as  apparent  as  the  direct  correlation  between  these 
crimes  and  prices,  because  wages  change  more  slowly  than  prices, 
and  therefore  cannot  have  so  much  effect  at  any  one  time  upon 
the  extent  of  criminality. 

1  The  tables  from  which  these  charts  are  plotted  are  given  in  Appendix  A. 
^  Many  of  these  figures  are  cited  in  W.  A.  Bonger,  Crimmality  and  Eco- 
nomic Conditions,  Boston,  1916. 


72 


CRIMINOLOGY 


ENGLAND   AND   WALES 


1858 


1859 


1860 


YEARS 
1861 


1862 


1863 


1864 


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+50 
+45 
+40 

gf35 
S+30 
>+25 

a-20 

go 

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w 

p-10 
0-15 
O-20 

k-25 
W 

O-30 
p4 

Ph-35 
-40 
-45 
-50 
-55 
-60 


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I? 

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— -/— . 

X0^ 

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^/ 

THE  ECONOMIC   BASIS   OF   CRIME  73 

Now  changes  in  prices  and  wages  usually  cause  changes  in 
the  economic  welfare  of  the  great  majority  of  the  people.  A 
rise  in  prices,  especially  in  the  prices  of  such  articles  as  the  staple 
foods,  is  almost  certain  to  raise  the  cost  of  living  for  the  poorer 
classes,  since  wages  do  not  ordinarily  rise  as  fast  as  prices.  In 
similar  fashion  a  fall  in  wages  may  cause  a  rise  in  the  cost  of 
living,  though  this  happens  rarely,  since  prices  fall  usually  as 
fast  or  faster  than  wages.  These  facts  indicate,  therefore,  that 
there  is  a  causal  relation  between  economic  welfare  and  crimes 
against  property. 

It  would,  however,  be  a  mistake  to  assume,  as  has  been  as- 
sumed by  some  writers,  especially  among  the  socialists,  that 
this  criminality  is  determined  entirely  by  these  economic  factors. 
Many  factors  play  a  part  in  causing  crime.  Among  these  are 
the  telluric  factors,  the  organic  factors,  and  various  social  factors 
apart  from  the  economic.  We  have  already  studied  the  influence 
of  several  of  the  telluric  factors,  such  as  climate  and  season.  We 
have  noted  a  correlation  between  seasonal  changes  and  crimi- 
nality which,  however,  does  not  necessarily  mean  that  crim- 
inality is  determined  entirely  by  these  telluric  factors.  In  sim- 
ilar fashion  there  exists  a  correlation  between  economic  changes 
and  criminality  which  indicates  that,  while  the  other  factors 
are  relatively  constant,  changes  in  the  economic  factors  are 
bringing  about  corresponding  fluctuations  in  the  criminality.^ 

^  Van  Kan  has  stated  this  idea  clearly  and  precisely  in  the  following  words: 
"La  criminalite  suit  avec  une  regularite  frappante  la  courbe  des  fluctua- 
tions 6conomiques,  et  ce,  non  pas  parce  que  le  crime  est  le  produit  exclusif 
du  facteur  economique,  mais  en  raison  de  ce  que,  pr6cisement,  parmi  tous 
les  facteurs  criminogSnes,  le  facteur  6conomique  est  le  plus  mobile,  le  plus 
variable  et  le  plus  expose  k  des  oscillations  annuelles  et  qu'il  exerce  partout 
I'influence  la  plus  apparente  et  la  plus  soudaine  sur  le  mouvement  des 
phenomfenes  qui  se  rattachent  k  lui.  Les  autres  facteurs  qui  agissent  sur  les 
d61its,  facteurs  d'ordre  organique,  d'ordre  cosmique  et  tellurique  et  d'ordre 
social,  non  economique,  sont,  de  nature,  sujets  k  des  changements  annuels 
restreints  et  lents,  et,  partant,  peu  apparents.  Leur  courbe  est  presque 
rectiligne.  Done  la  courbe  correspondante  de  la  criminalit6  que  la  premiere 
courbe  tient  sous  sa  d6pendance,  ne  manifeste  non  plus  que  des  variations 
insensibles  et  demeure  presque  identique  k  elle-mfime,  d'ann^e  en  ann6e. 
Ce  sont  les  oscillations  economiques,  capricieuses  et  brusques,  qui  constituent 
dans  la  courbe  de  la  criminality  \'€\6ment  perturbateur  et  provoquent  les 
differences  qu'on  y  remarque  d'une  ann6e  k  I'autre."  (J.  van  Kan,  Les 
causes  iconotniques  de  la  criminality,  Paris,  1903,  p.  11.) 


74 


CRIMINOLOGY 

FRANCE 

YEARS 


THE   ECONOMIC   BASIS   OF   CRIME  75 

These  economic  changes  are  due  in  part  to  telluric  forces 
which  determine  the  size  of  the  crops,  etc.,  and  in  part  to  the 
economic  and  political  organization  of  society  which  leads  to 
the  fluctuations,  sometimes  almost  catastrophic  in  their  char- 
acter, of  the  trade  cycle.  They  give  rise  to  changes  in  the  extent 
of  crime  in  various  ways.  Generally  speaking  it  may  be  said 
that  these  changes  are  due  to  variations  in  the  purchasing  power 
of  the  great  majority  of  the  population  which  modify  the  eco- 
nomic pressure  to  commit  criminal  acts. 

The  Economic  Crimes 

The  second  method  of  studying  the  influence  of  economic 
factors  upon  criminality  is  to  ascertain  which  of  the  crimes  are 
due  in  the  main  to  economic  forces,  and  may  therefore  be  called 
the  economic  crimes.  It  is  generally  assumed  that  crimes  against 
property  are  due  to  economic  motives,  and  are  therefore  eco- 
nomic crimes.  Roughly  speaking  this  is  true.  But  there  are 
some  exceptions  to  this  rule,  and  there  are  a  good  many  crimes 
which  are  due  in  part  to  economic  forces  but  also  to  other 
forces. 

It  is  not  easy  to  measure  accurately  the  influence  of  economic 
forces  in  the  causation  of  any  kind  of  crime.  Fornasari  di  Verce 
has  made  a  careful  study  of  the  influence  of  economic  conditions 
and  changes  upon  criminality  in  Italy  between  the  years  1873 
and  1890.  In  the  following  table  he  indicates  the  extent  to 
which  he  believes  the  different  kinds  of  crimes  to  be  influenced 
by  the  economic  welfare  of  those  who  commit  them:  —  ^ 

Tarde  has  expressed  a  similar  thought  from  a  conservative  point  of  view 
as  follows: 

"En  somme,  la  criminality  et  la  morality  d'un  pays  tiennent  bien  moins 
k  son  Stat  6conomique  qu'i  ses  transformations  economiques.  Ce  n'est  pas 
le  capitalisme  comme  tel  qui  est  demoralisateur,  c'est  la  crise  morale  qui 
accompagne  le  passage  de  la  production  artisane  k  la  production  capitaliste, 
ou  de  tel  mode  de  celle-ci  k  tel  autre  mode."  (G.  Tarde,  La  criminalitS  et 
les  phenomines  Sconomiques,  in  the  Arch,  d'anth.  crim.,  Vol.  XVI,  1901, 
p.  S68.) 

^  E.  Fornasari  di  Verce,  La  criminalitd  e  le  vicende  economiche  d'ltalia, 
Turin,  1894,  p.  138. 


76 


CRIMINOLOGY 


RUSSIA 


^      lO      NO 


€3 


00    a»    o 


Ob    00    oQ    00    00 


YEARS 


00     00    00 


ooooooCT\a>ca>(T>ai 
oooooooooooooooo 


THE  ECONOMIC  BASIS  OF  CRIME 


77 


u   so 
H.S 


P    u 


Ji     <J  Q 

O    O  3 

<u  u 

«  S  y 

3    C  O 

C«  h-i  C 


Much. 


Moderately. 


Little. 


Crimes  over  which 
the  Influence  of 
Alcohol  is 
Predominant. 


Hardly  at  All. 


Not  at  All. 


1.  Thefts  of  all  kinds. 

2.  Embezzlement,      cheating,     and 

other  frauds. 

3.  Crimes  against  property  coming 

before  the  magistrate  (except- 
ing rural  thefts,  included  un- 
der i).  • 

4.  Commercial     crimes     (excepting 

fraudulent  bankruptcy) . 

5.  Blackmail,  extortion,  and  robbery. 

6.  Crimes  against  the  order  of  the 

family. 

7.  Crimes  against  persons  coming  be- 

fore the  magistrate. 

8.  Crimes  against  the  public  order. 

9.  Crimes  against  the  public  admin- 

istration (excepting  rebellion 
and  violence  to  public  authori- 
ties). 

10.  Forgery  and  counterfeiting. 

I.  Assault    and     extortion     with 

homicide. 
II.  Rebellion,  and  violence  to  the 
public  authorities. 

III.  Homicide  of  every  kind. 

IV.  Assaults  and  intentional  injuries. 
.  .  .  Sexual  crimes. 

11.  Attacks  upon  the  safety  of  the 

state. 

12.  Perjury,  slander,  etc. 

13.  Fraudulent  bankruptcy. 

14.  Insults,  and  defamation  of  char- 

acter. 

15.  Crimes  against  religion. 

16.  Arson  and  malicious  mischief. 


Fornasari  di  Verce  has  made  a  similar  study  of  the  influence 
of  economic  conditions  and  changes  upon  criminality  in  Great 
Britain  between  the  years  1840  and  1890,  and  in  New  South 
Wales  between  the  years  1882  and  1891.  In  the  following  table 
he  gives  the  results  of  this  study  for  Great  Britain:  —  ^ 


1 1  have  translated  the  word  "vicende,"  which  literally  means  "vicissi- 
tudes" or  "changes,"  by  the  word  "welfare,"  because  this  word  seems  to 
express  most  accurately  the  author's  meaning  at  this  point. 

*  Op.  cit.,  p.  202. 


78 


CRIMINOLOGY 


T3 
(3 


I— I  m  •^ 

4)  c3  "5 

j:3  its    !* 

o  ^  c 


w 


5  t3  d  4J 

■^  w  S  y 

3  o  c 

H  c  o  c 

=^  ^  •*-  /^ 


Much. 
Moderately. 

Little-. 

Crimes  over  which 
the  Influence  of 
Alcohol  is 
Predominant. 

Not  at  All. 

Only  slightly. 


Crimes  against  property  without 
violence. 

Crimes  against  property  with  vio- 
lence. 

Crimes  against  property  with  pre- 
meditated destruction. 

Crimes  other  than  those  named 
above  and  those  against  persons 
and  against  the  currency. 

Crimes  against  persons. 


Misdemeanors  and  contraventions. 
Forgery  and  counterfeiting. 


These  tables  indicate  that  economic  pressure  tends,  generally 
speaking,  to  increase  crimes  against  property  more  than  crimes 
against  the  person.  This  merely  confirms  what  v^^e  have  al- 
ready learned  from  the  correlation  between  fluctuations  in 
prices  and  wages  and  changes  in  the  extent  of  criminality. 

The  following  table  indicates  the  percentage  of  economic 
crimes  as  compared  with  other  kinds  of  crimes  in  several  coun- 
tries:—  ^ 

Economic  Sexual  Crimes  of  Political 

Crimes  Crimes  Vengeance  *  Crimes 

Germany,  1896-1900 41.89             1.32             56.67  0.12 

England,  1881-1900 36.78             0.63             62.59  0.00 

France,  1881-1900 60.09              i-59              38.32  0.00 

Italy,  1891-1895 46.7s             1.57             51.68  0.00 

Netherlands,  189  7- 190 1.. .      42.12             0.84             5704  0.00 

*  In  this  class  are  included  such  crimes  as  insults,  malicious  mischief, 
arson,  assaults,  homicide,  etc. 

We  can  see  from  the  above  table  that  the  so-called  economic 
crimes  in  which  economic  factors  predominate  constitute  from 
two  to  three-fifths  of  the  total  number  of  crimes.^    Furthermore, 

^  Summarized  and  adapted  from  W.  A.  Bonger,  op.  cit.,  pp.  538-542. 

*  According  to  the  U.  S.  Census  of  1910,  the  offenses  for  which  persons 
were  committed  to  penal  institutions  during  the  year  1910  were  distributed 
as  follows: 


THE   ECONOMIC  BASIS   OF   CRIME  79 

we  have  reason  to  believe  that  economic  factors  play  at  least  a 
small  part  in  the  causation  of  many  of  the  other  crimes. 

Sexual  crimes  are  due  in  part  to  economic  factors,  such  as 
the  economic  difficulties  in  the  way  of  marrying  in  early  youth, 
the  economic  dependence  of  woman,  intemperance  stimulated 
by  poverty,  etc. 

I  have  already  stated  that  crimes  against  the  person  tend 
to  increase  with  economic  prosperity  and  vice  versa.  This 
fact  suggests  that  economic  factors  have  some  influence  upon 
these  crimes.  It  is  probably  to  be  explained  by  the  fact  that 
in  times  of  prosperity  men  come  together  more  frequently  for 
purposes  of  amusement,  and  in  the  present  crude  state  of  civili- 
zation they  are  prone  to  amuse  themselves  by  an  intemperate 
use  of  alcohol  and  by  other  riotous  forms  of  conduct  which  are 
likely  to  lead  to  personal  encounters,  and  thus  to  crimes  against 
the  person. 

It  is  impossible  to  measure  accurately  the  influence  of  the 
economic  factors  in  the  causation  of  these  crimes  against  the 
person.  But  the  above  considerations  and  many  others  which 
might  be  named  indicate   that   they  should  be  given   some 

Prisoners  and  Juvenile  Delinquents  Committed  in  1910 

Ofense  No.  of 

O^ffenses 

All  offenses 493,934 

Offenses  against  the  person 30,411 

Gainful  offenses  against  property 67,557 

Other  offenses  against  property 10,641 

Offenses  against  chastity i3,944 

Offenses  against  the  adrranistration  of  government 2,456 

Offenses  against  public  health  and  safety 14,637 

Offenses  against  sobriety  and  good  order 313,406 

Offenses  against  public  policy 18,372 

Offenses  against  prisoner's  family 3,666 

Offenses  peculiar  to  children 7,803 

Miscellaneous  groups 11,041 

According  to  this  table,  crimes  against  property  constituted  less  than 
one-sixth  of  the  offenses  for  which  commitments  were  made.  But  it  will 
be  noted  that  more  than  three-fifths  of  the  total  number  of  offenses  were 
offenses  against  sobriety  and  good  order,  which  include  drunkenness,  dis- 
orderly conduct,  vagrancy,  etc.  Most  if  not  all  of  these  petty  offenses  are 
omitted  from  the  European  figures  given  above.  So  that  if  we  omit  these 
minor  offenses,  the  crimes  against  property  constitute  nearly  one-half  of 
the  offenses  which  remain. 


8o  CRIMINOLOGY 

weight.^  The  same  is  true  of  political  crimes  which,  while  they 
are  few  in  number,  are  of  great  significance.  Many  of  these 
crimes  are  committed  because  of  existing  economic  conditions 
and  in  an  effort  to  change  these  conditions. 

The  Economic  Status  of  the  Criminal 

The  third  method  of  studying  the  influence  of  economic 
forces  upon  crime  is  to  investigate  the  economic  status  of  the 
criminal.  This  may  be  accomplished  by  ascertaining  the  eco- 
nomic classes  with  respect  to  the  distribution  of  wealth  to  which 
criminals  belong,  and  by  ascertaining  the  occupations  to  which 
they  belong. 

It  is  a  well  known  fact  that  the  majority  of  the  criminals 
belong  to  the  poorer  classes.  But  it  is  also  true  that  the  major- 
ity of  the  total  population  belongs  to  these  classes.  So  that 
it  is  necessary  to  ascertain  whether  the  percentage  of  criminals 
from  these  classes  is  larger  than  the  percentage  which  these 
classes  form  of  the  total  population.  This  is  a  difficult  matter 
to  determine  on  account  of  the  paucity  of  accurate  data. 

One  of  the  few  computations  of  this  sort  has  been  made  by 
Fornasari  di  Verce.^  Taking  the  statistics  from  the  Italian 
census  of  1881,  he  grouped  together  the  occupations  consisting 
mainly  of  the  rich,  the  well-to-do,  the  moderately  well-to-do, 
and  those  with  enough  to  live  comfortably,  and  found  that  they 
contained  390.66  out  of  every  thousand  persons  of  both  sexes 
over  nine  years  of  age  in  Italy;  while  the  occupations  consisting 
mainly  of  the  poorer  classes,  having  scarcely  enough  to  live  on, 
contained  609.34  out  of  every  thousand  persons  of  both  sexes 
over  nine  years  of  age. 

From  the  Italian  judicial,  penal  statistics  he  ascertained  that 
persons  convicted  of  crime  during  the  years  1887,  1888,  and 
1889,  were  distributed  according  to  their  wealth  or  poverty  as 
indicated  in  the  following  table:  — 

'  Bonger,  who  as  a  socialist  gives  excessive  weight  to  the  influence  of 
economic  factors,  expresses  the  opinion  that  the  principal  causes  of  crimes 
against  the  person  are  "first,  the  present  structure  of  society,  which  brings 
about  innumerable  conflicts;  second,  the  lack  of  civilization  and  education 
among  the  poorer  classes;  and  third,  alcoholism,  which  is  in  turn  a  conse- 
quence of  the  social  environment."    (W.  A.  Bonger,  op,  cit.,  p.  643.) 

2  E.  Fornasari  di  Verce,  op.  cit.,  pp.  3-4. 


THE  ECONOMIC  BASIS  OF  CRIME  8l 

EcoNOJflc  Classification  of  Persons  Convicted  of  Crime  in  Italy 

Percentage  of  Distribution 

The  Economic  Classes                           1887               1888  i88q 

Indigent S6.34              57-45  56.00 

Having  only  the  bare  necessities 29 .99              30. 77  32 .  15 

Moderately  well-to-do 11 -54               998  10.13 

Well-to-do  or  rich 2.13                i .  80  1.72 


The  economic  classification  used  in  this  computation  is  neces- 
sarily arbitrary,  and  doubtless  leads  to  some  error.  But  so 
far  as  this  computation  can  be  relied  upon,  it  indicates  that 
while  about  60  per  cent,  of  the  total  population  belong  to  the 
poorer  classes  in  Italy,  about  85  to  90  per  cent,  of  the  convicted 
persons  belong  to  these  classes. 

More  statistics  might  be  cited  all  of  which  indicate  that  the 
poorer  classes  are  proportionally  much  more  criminal  than  the 
richer  classes.^  This  suggests  a  correlation  between  poverty 
and  criminality  similar  to  the  correlations  we  have  already 
found  between  certain  other  economic  forces  and  conditions 
and  criminality.  It  suggests  that  poverty  is  a  cause  of  crimi- 
nality. This  is  contended  by  some  writers,  especially  the  so- 
cialist writers.  On  the  other  hand,  it  is  denied  by  some  writers 
on  the  ground  that  both  poverty  and  criminality  are  due  to 
weaknesses  of  character  in  the  individual,  so  that  they  are 
common  results  of  the  same  cause,  but  not  causes  of  each  other. 
Some  of  those  who  deny  this  theory  of  poverty  as  a  cause  of 
crime  regard  these  individual  weaknesses  as  defects  of  character 
for  which  the  individual  is  to  blame  from  a  moral  or  religious 
point  of  view.  Some  of  the  writers  who  deny  this  theory  are 
criminal  anthropologists  or  other  scientists  who  regard  these 
weaknesses  as  abnormal  and  pathological  traits  for  which  the 
individual  is  not  to  blame  in  any  moral  or  religious  sense.  This 
is  a  difficult  problem  which  can  be  solved  only  by  means  of  a 
study  of  the  economic  organization  of  society,  which  I  shall 
discuss  later  in  this  chapter. 

Occupational  Distribution  of  Criminals 

The  occupational  distribution  of  criminals  throws  a  good 
*  Some  of  these  statistics  are  to  be  found  in  W.  A.  Bonger,  op.  cii.,  pp.  436- 
439- 


82 


CRIMINOLOGY 


deal  of  light  upon  their  economic  status.  The  following  table 
gives  this  distribution  for  Germany  during  the  years  1890  to 
1894:-^ 

Occupation  and  Ckiminality  in  Germany,  1890-1894 

To  ICX5  Adults  of  the 
Of  100  Persons  Convicted  Total  Population  there 

of  Crime  there  Belonged  to  were  in  1895  {Statistics 

the  Following  Occupations  of  the  German  Empire, 

Vol.  Ill) 
Agriculture,  Forestry,  ( Independent  4.7  7.0 

Hunting,  and  ■<  Assistants  18.9  15.6 

Fishing  ( Relatives  2.3  1.21 

Industries,  ( Independent  6.4  5.6 

Mining,  and  -<  Assistants  30 . 4  17.0 

Building  Trades  (Relatives  4.4  14.5 

Trade  and  Commerce,  ( Independent  5.7  2.3 

including  Hotels  -s  Assistants  5.8  4.1 

and  Public  Houses  (,  Relatives  1.2  4.6 

Public  and  Court  Service,  ( Actively  Engaged  1.3  2.2 

Liberal  Professions  <  Relatives  0.17  1.8 

Domestic  5  Actively  Engaged  1.6  4.3 

Servants  { Relatives  o . 02  0.2 

Workmen,  f  Actively  Engaged        10.4  0.6 

Trade  not  given  \  Relatives  1.8  0.4 

Without  Occupation,  and  ( Independent  4.6  5.8 

Occupation  not  given  { Relatives  o.  27  1.9 

The  following  table  gives  the  occupational  distribution  in 
Italy  during  the  years  1891  to  1895:  —  ^ 

Occupation  and  Criminality  in  Italy,  1891-1895 

Convicts 
Groups  of  Occupations  Annual  Average  to  100,000 

of  each  Group  of  Occupations 

Agriculture 1,009 .  03 

Manufacturing,  arts  and  trades 855 .  78 

Commerce,  transport,  navigation  and  fishing 1,677 .46 

Domestic  service 4x0 .  96 

Employees,  liberal  professions,  capitalists,  pensioners. .        288 .  58 

^  Adapted  from  a  table  in  G.  Aschaffenburg,  Crime  and  Its  Repression, 
Boston,  1913,  p.  66.  The  figures  are  taken  from  the  Statistik  des  Deutschen 
Reichs,  Neue  Folge,  LXXXIX,  II,  p.  48. 

*  Cited  in  W.  A.  Bonger,  op.  cit.,  p.  446,  from  the  Italian  judicial  and  penal 
statistics.  As  the  calculations  are  based  upon  the  census  of  1881,  the  table 
is  rather  inaccurate. 


THE  ECONOMIC  BASIS  OF  CRIME  83 

The  last  table  seems  to  indicate  that  criminality  is  very  prev- 
alent in  the  commercial  occupations,  is  moderately  prevalent 
in  agriculture,  manufacturing  and  the  trades;  but  is  low  among 
domestic  workers,  and  is  very  low  in  the  liberal  professions. 
But  this  table  is  misleading  in  certain  respects,  as  is  indicated 
by  the  preceding  table  which  furnishes  the  facts  in  greater  de- 
tail. According  to  that  table,  in  Germany  in  the  agricultural 
group  criminaUty  is  high  among  the  employees,  but  is  low  among 
the  employers.  In  other  words,  the  farmer  who  owns  his  farm 
is  not  likely  to  become  criminal,  but  the  farm  laborer  who  hires 
out  his  services  is  much  more  likely  to  become  criminal.  In 
similar  fashion,  in  the  industrial  group  the  employees  are  much 
more  criminal  than  the  employers.  In  the  commercial  group, 
on  the  contrary,  the  independent  commercial  workers  seem  to 
be  far  more  criminal  than  the  commercial  employees.  The  high 
figure  for  the  independent  commercial  workers  is  probably  due 
to  the  fact  that  there  are  many  small  merchants  and  petty 
tradesmen  who  are  prone  to  commit  certain  kinds  of  crimes. 
For  example,  according  to  the  German  statistics  upon  which 
the  table  in  question  is  based  59.8  per  cent  of  the  usurious  of- 
fenses were  committed  by  this  group,  despite  the  fact  that  this 
group  contained  only  2.3  per  cent  of  the  total  population.  Other 
crimes  which  are  common  in  this  group  are  fraud,  perjury, 
receiving  stolen  goods,  etc. 

Both  of  the  above  tables  indicate  that  criminality  is  not  prev- 
alent in  domestic  service  and  in  the  liberal  professions.  The 
low  percentage  of  crime  among  domestic  servants  is  probably 
due  to  the  fact  that  they  are  usually  well  cared  for  in  the  homes 
of  their  employers,  and  are  not  subjected  to  as  many  tempta- 
tions to  commit  crimes  as  persons  engaged  in  most  of  the  other 
occupations.-^  The  low  percentage  of  crime  in  the  liberal  pro- 
fessions is  doubtless  due  to  the  facts  that  those  engaged  in  these 
professions  are  usually  well  educated,  and  are  economically 
at  least  moderately  well-to-do. 

The  occupational  distribution  of  criminals  also  seems  to 
reveal  the  pressure  of  poverty  and  other  forms  of  economic 
hardship  as  causes  of  crime;  though  here  again  it  may  be  true, 

^  The  above  statistics  and  many  others  like  them  show  how  erroneous  is 
the  exaggerated  estimate  of  the  extent  of  crime  among  female  domestic 
servants  in  R.  de  Ryckfere,  La  servante  criminellc,  Paris,  1908,  p.  2. 


84  CRIMINOLOGY 

as  I  have  mentioned  above,  that  crime  and  poverty  are  results 
of  a  common  cause  and  are  not  causes  of  each  other.  By  means 
of  an  intensive  study  of  each  occupation  it  would  be  possible 
to  show  how  it  gives  rise  to  specific  forms  of  criminality,  and 
how  each  occupation  is  more  or  less  characterized  by  certain 
kinds  of  criminality.^ 

Professional  Criminality 

The  fourth  method  of  studying  the  influence  of  economic 
factors  which  I  shall  use  is  by  means  of  investigating  profes- 
sional criminality,  namely,  the  criminality  of  those  who  make  of 
the  committing  of  crimes  a  profession  and  an  occupation.  It  is 
evident  that  in  professional  criminality  the  economic  motive 
is  predominant,  since  the  criminal  is  making  his  livelihood 
entirely  or  in  part  illegally  in  a  criminal  career,  just  as  other 
persons  gain  their  livelihoods  legally  in  non-criminal  ways. 

It  is  impossible  to  esthnate  with  any  degree  of  accuracy  the 
extent  of  professional  criminality.  On  account  of  their  greater 
skill  as  criminals,  in  all  probability  more  of  the  professional 
criminals  escape  punishment  than  of  the  other  types  of  crimi- 
nals. For  example,  mentally  defective  and  insane  criminals, 
and  criminals  by  passion  are  much  more  likely  to  get  caught 
than  professional  criminals.  On  account  of  their  lack  of  experi- 
ence occasional  criminals  are  more  likely  to  get  caught  than 
professionals.  Some  of  these  occasional  criminals  with  further 
experience  become  professionals. 

We  have,  therefore,  reason  to  believe  that  the  number  of 
professionals  in  prison  at  any  time  constitutes  only  a  part,  and 
perhaps  only  a  small  part,  of  the  total  mmiber  of  criminals  of 
this  type.^    If  we  bear  in  mind  that  a  considerable  proportion, 

'  "Le  crime  professionel  des  sages-femmes:  c'est  I'avortement;  celui  des 
agents  de  change:  la  fraude  et  I'usure;  celui  des  magistrals:  la  partialite; 
celui  des  hommes  politiques:  la  corruption;  celui  des  publicistes:  la  calomnie." 
(E.  Laurent,  Le  criminel,  Paris,  1908,  p.  125.) 

*  The  notorious  French  professional  criminal,  Leblanc,  testified  as  follows 
with  regard  to  the  number  of  professionals  in  prison:  "I  know  very  well  that 
we  have  risks  to  run,  that  the  police  and  the  courts  are  at  hand,  that  the 
prison  is  not  very  far  distant;  but  out  of  eight  thousand  thieves  in  Paris, 
you  never  have  more  than  seven  or  eight  hundred  in  jail;  that  is  not  a  tenth 
of  the  whole.    We  enjoy,  then,  on  the  average,  nine  years  of  liberty  to  one 


THE   ECONOMIC   BASIS   OF   CRIME  85 

perhaps  as  many  as  half  of  those  in  prison,  are  professionals, 
we  can  readily  see  that  the  total  number  must  be  very  large. 
Several  comments  should  be  made  which  are  of  significance  in 
this  connection. 

In  the  first  place,  as  I  have  already  had  occasion  to  remark, 
a  good  many  crimes  such  as  petty  thefts  are  committed  which 
never  become  known,  either  because  the  loss  is  never  discovered 
or  because  it  is  not  recognized  as  a  theft.  In  the  second  place, 
a  good  many  crimes  become  known  for  which  no  one  is  tried 
because  no  evidence  can  be  found.  ^  In  the  third  place,  a  con- 
siderable proportion  of  the  cases  which  come  before  the  criminal 
courts  end  in  dismissal  or  acquittal.  In  many  of  these  cases  a 
crime  has  unquestionably  been  committed.  In  the  fourth  place, 
in  a  few  cases  in  which  both  the  crime  and  the  criminal  are 
known  the  case  never  comes  into  court  because  the  victim  re- 
fuses to  make  a  complaint,  either  in  order  to  avoid  the  annoy- 
ance of  having  to  testify,  or  out  of  a  kindly  feeling  towards  the 
ofifender. 

In  the  last  type  of  case  mentioned  the  ofifender  may  be 
a  servant  or  employee  whom  his  master  or  employer  does 
not  want  to  prosecute.  But  in  all  of  the  other  cases  the 
criminal  is  likely  to  be  a  professional  who  is  escaping  de- 
tection and  pimishment  through  his  skill  as  a  criminal.  It  is 
true  that  some  of  those  who  may  be  called  professional  criminals 
are  very  stupid  and  are  frequently  caught.  They  are  usually 
on  the  borderline  between  the  professional  and  the  mentally 
defective  criminal.  But  the  higher  type  of  professional  criminal 
who  is  skillful  as  a  criminal,  though  he  may  not  be  skillful  in 
any  other  way,  is  responsible  for  a  considerable  proportion  of 
the  crimes  committed,  and  yet  escapes  punishment  much  of  the 
time. 

Economic  factors  are  doubtless  very  powerful  in  creating  the 
professional  criminal.  Some  of  these  criminals,  perhaps  many 
of  them,  possess  weaknesses  and  defects  of  character  which 
have  played  some  part  in  leading  them  into  criminal  careers. 
Economic  and  other  social  forces  may  have  been  the  sole  causes 

in  prison."  (M.  Girguet,  M6moires,  Paris,  1840.  Qioted  in  W.  A.  Bonger, 
op.  cit.,  p.  586.) 

^See  G.  Tarde,  "Les  dSlits  itnpoursums,"  in  his  Essais  et  m&anges  so- 
ciologiques,  Lyons,  1895. 


86  CRIMINOLOGY 

of  the  criminality  of  other  professional  criminals.  But  even  in 
the  cases  where  defects  of  character  are  partly  responsible, 
economic  forces  also  are  almost  invariably  at  work,  and  in  many 
of  these  cases  better  economic  conditions  would  have  restrained 
the  defects  of  character  from  giving  rise  to  criminality. 

To  put  it  still  more  concretely,  it  is  economic  pressure  in  early 
youth  in  the  form  of  a  struggle  for  subsistence  or  for  a  higher 
standard  of  living,  and  resulting  usually  in  inadequate  intellec- 
tual and  moral  training  and  association  with  bad  companions, 
which  forces  or,  to  say  the  least,  leads  many  of  these  professional 
criminals  into  their  first  crimes.  Many  of  these  would  never 
pass  beyond  occasional  criminality  were  it  not  for  the  cor- 
rupting influence  of  the  prisons,  most  of  which  are  training 
schools  for  crime  and  make  many  of  these  beginning  criminals 
into  full-fledged  professionals.  ^ 

Influence  of  Economic  Organization  upon  Crime 

We  have  now  studied  the  influence  of  economic  forces  upon 
criminality  by  correlating  economic  changes  as  revealed  by 
fluctuations  in  prices  and  wages  with  changes  in  the  extent  of 
criminality,  by  ascertaining  what  crimes  are  apparently  im- 
mediately due  to  economic  motives,  by  ascertaining  the  economic 
class  and  occupation  of  the  criminals,  and  by  investigating 
criminality  as  an  occupation  and  profession.  All  of  these  meth- 
ods of  study  have  shown  that  the  influence  of  the  economic 
factors  is  very  great,  though  it  is  impossible  to  measure  it  ac- 

^  Bonger  characterizes  the  etiology  of  the  professional  criminal  as  follows: 
"Except  for  a  few  subsidiary  circumstances  the  life  of  the  professional 
criminal  may  be  summed  up  as  follows.  With  very  rare  exceptions  he  springs 
from  a  corrupt  environment,  perhaps  having  lost  his  parents  while  still  very 
young,  or  having  even  been  abandoned  by  them.  Being  misled  by  bad 
company,  he  commits  an  'occasional'  theft  while  still  a  child,  for  which  he 
must  pay  the  penalty  of  an  imprisonment;  he  may  at  times  owe  his  entrance 
into  prison  to  a  non-economic  misdeed.  This,  however,  is  a  very  rare  excep- 
tion. As  we  have  remarked  above,  prison  never  improves  him,  and  generally 
makes  him  worse.  If  he  is  in  contact  with  the  other  prisoners,  among  whom 
there  are  naturally  a  number  of  out  and  out  criminals,  he  hears  the  recital 
of  their  adventurous  life,  learns  their  tricks  and  all  that  he  still  needs  to 
know  to  be  thoroughly  informed  as  to  '  the  profession.'  Nor  will  the  separate 
cell  be  any  more  profitable  to  him,  brutalized  as  he  already  is  by  his  earlier 
environment."  (W.  A.  Bonger,  op.  cit.,  p.  581.)  As  a  socialist  Bonger  fails 
to  give  suflScient  weight  to  defects  of  character. 


THE  ECONOMIC   BASIS   OF  CRIME  87 

curately  at  any  point.  It  will,  nevertheless,  be  worth  while, 
before  closing  this  chapter,  to  survey  briefly  the  economic  or- 
ganization and  condition  of  society  in  order  to  characterize 
and  estimate  in  a  general  way  these  economic  forces  for  crime. 
I  have  discussed  this  subject  at  length  in  another  work  from 
which  I  will  reproduce  the  following  passages: 

''Perhaps  the  most  striking  feature  of  the  existing  economic 
organization  of  society  is  that  under  the  regime  of  private  busi- 
ness enterprize  the  greater  part  of  the  means  of  production  is 
owned  by  a  comparatively  small  number  of  individuals,  while 
the  immediate  control  of  most  economic  activities  is  in  the 
hands'  of  a  still  smaller  number  of  individuals.  The  result  is 
that  most  of  the  workers  are  put  at  a  decided  disadvantage  in 
securing  their  share  of  the  amount  produced  by  society.  Since 
the  beginning  of  the  modern  industrial  organization,  and  per- 
haps for  a  much  longer  period,  the  workers  have  not  been  able 
to  influence  to  any  great  extent  their  share  in  the  distribution  of 
wealth.  This  has  been  determined  by  such  factors  as  the  rich- 
ness of  the  natural  resources,  the  density  of  the  population,  the 
accumulation  of  capital,  the  form  of  business  enterprize,  etc.; 
all  of  which  are  factors  over  which  they  have  had  little  or  no 
immediate  control.  In  view  of  this  fact  it  is  not  surprizing  that 
there  is  the  great  inequality  in  the  distribution  of  wealth  and 
the  enormous  concentration  of  wealth  in  the  hands  of  a  few 
which  we  have  discussed  in  an  earlier  chapter. 

"Another  significant  feature  of  modern  economic  organiza- 
tion is  the  great  instability  of  industry.  The  principal  illustra- 
tion of  this  instability  is  to  be  found  in  the  alternation  between 
the  periods  of  depression  and  of  prosperity  which  takes  place 
in  the  trade  cycle.  But  at  all  times  there  is  more  or  less  in- 
stability, since  industrial  concerns  are  failing,  or  are  overproduc- 
ing and  thus  preparing  to  fail.  The  fundamental  cause  for  this 
instability  is  the  difficulty  of  obtaining  an  adjustment  between 
the  supply  of  and  the  demand  for  economic  goods.  Now  it 
goes  without  saying  that  this  difficulty  has  always  existed,  and 
always  will  exist  to  a  certain  extent.  But  in  the  past  society 
was  organized  in  the  main  in  small  communities  which  were 
more  or  less  self-sufficing  economically.  Consequently,  pro- 
ducers were  in  close  touch  with  the  consumers  of  their  products, 
and  could  adjust  their  output  more  or  less  accurately  to  the 


88  CRIMINOLOGY 

demand.  Under  the  present  large  scale,  machine  system  of 
production  it  takes  a  great  deal  of  capital  to  start  most  industrial 
enterprizes,  and  in  many  cases  takes  the  producers  a  long  time 
to  discover  the  nature  and  extent  of  the  demand  for  their  goods. 
Consequently,  the  chances  for  overproduction  and  for  business 
failure  are  greatly  increased.  The  results  are  a  vast  amount  of 
unemployment  for  the  workers,  and  bankruptcy  for  many  capi- 
talists and  enterprizers. 

"Another  cause  of  poverty  which  should  be  prevented  as  far 
as  possible  is  the  waste  of  economic  goods.  Whether  or  not  there 
is  proportionately  more  waste  now  than  there  has  been  in  the 
past,  it  would  be  difficult  to  determine.  But  it  is  not  important 
for  our  purpose  to  decide  this  question.  What  is  important  is 
to  determine  the  causes  of  waste,  and  to  discuss  how  they  may 
be  removed.  It  is  evident  that  the  instability  of  industry  men- 
tioned above  causes  a  great  deal  of  waste,  through  the  loss  of 
labor  force  and  the  dissipation  of  capital.  A  good  deal  is  wasted 
through  excessive  luxury  and  extravagance  in  consmnption. 
Advertizing  constitutes  an  enormous  waste  in  modern  society, 
while  the  middlemen  and  hangers-on  of  our  industrial  system 
cause  still  more  waste.  Many  more  forms  of  waste  might  be 
enumerated  had  we  the  space  to  do  so. 

"The  amount  produced  by  society  could  be  greatly  increased 
if  the  efficiency  of  the  workers  were  improved.  By  means  of 
vocational  training,  scientific  management,  etc.,  workers  could 
be  distributed  in  industry  more  nearly  in  accordance  with  their 
natural  aptitudes,  and  would  be  far  more  efficient  because  they 
would  do  their  work  by  means  of  scientific  methods.  But  to  in- 
crease the  efficiency  of  the  worker  is  not  sufficient  if  he  is  not 
given  an  opportunity  to  work.  It  would  also  be  necessary  to 
increase  the  opportunities  for  production,  so  that  all  of  the  hu- 
man talent  available  could  be  used  in  the  industrial  system."  ^ 

Poverty  and  Crime 

Among  the  results  from  this  faulty  organization  of  society  are 
poverty  and  its  attendant  conditions.  "In  every  large  city  are 
to  be  found  the  districts  of  congested  population.  Here  are  the 
dwelling  houses  and  tenements  in  which  many  of  the  poor  are 
crowded  and  live  in  conditions  which  are  uncomfortable  and 
1  Poverty  and  Social  Progress,  New  York,  1916,  pp.  358-9. 


THE  ECONOMIC  BASIS  OF  CRIME  89 

insanitary.  The  furnishings  of  these  homes  usually  are  in- 
sufficient for  comfort  and  for  health.  The  food  is  inadequate 
and  of  poor  quality.  The  results  from  these  conditions  are  to  be 
found  in  physical  weakness  and  widespread  disease.  As  a  con- 
sequence, the  adults  are  inefficient  at  their  work,  and  the  chil- 
dren unable  to  learn  with  facility  in  the  schools.  These  are  the 
districts  in  which  the  morbidity  and  mortahty  rates  are  high. 
Frequently  also  they  are  the  districts  in  which  the  rates  for 
crime  and  intemperance  are  high.  It  goes  without  saying  that 
forces  for  crime  and  intemperance  are  to  be  found  everywhere  in 
human  society.  But  there  is  no  doubt  that  the  conditions  of  the 
poor  stimulate  both  of  these  evil  tendencies.  This  is  peculiarly 
true  of  intemperance.  It  is  in  the  main  the  misery  of  the  poor 
which  impels  them  to  seek  the  temporary  relief  furnished  by 
alcoholic  beverages,  thus  inevitably  leading  them  to  a  far  worse 
state  of  misery.^  Thus  it  is  that  intemperance,  which  is  to  so 
great  an  extent  a  result  of  poverty,  becomes  as  well  a  potent 
force  for  poverty. 

"Under  these  conditions  it  is  hardly  possible  for  the  family 
life  to  develop  to  its  fullest  extent.  On  account  of  lack  of  leisure 
and  of  the  necessary  facilities,  both  the  children  and  the  adults 
fail  to  get  a  sufficient  amount  of  recreation.  For  similar  reasons 
there  is  obviously  Httle  opportunity  for  cultural  development 
among  the  poor. 

"Nor  are  these  conditions  limited  to  large  cities,  for  they  are 
to  be  found  also  in  hovels  on  the  outskirts  of  small  towns  and 
villages,  and  even  in  the  open  country.  Furthermore,  most  of 
these  conditions  characterize  the  homeless  vagrants  and  men- 
dicants who  wander  from  place  to  place,  usually  in  greater 
destitution  than  the  poor  who  have  homes. 

"The  results  of  these  conditions  to  the  poor  themselves  can 
perhaps  be  best  summed  up  in  the  one  word  misery.  But  there 
are  several  evil  results  from  poverty  to  the  rest  of  society.  Even 
though  there  are  certain  individuals  who  profit  from  the  misery 
of  the  poor,  society  as  a  whole  sufifers  from  poverty  in  various 
ways.  As  we  have  already  noted,  the  prevalence  of  disease, 
crime  and  certain  kinds  of  vice  is  stimulated  by  poverty,  and, 
as  all  of  these  evils  are  more  or  less  contagious,  their  prevalence 

'  See,  for  a  discussion  of  this  subject,  a  monograph  by  the  present  writer 
entitled  Inebriety  in  Boston,  New  York,  1909. 


QO  CRIMINOLOGY 

is  by  no  means  limited  to  the  poor  themselves.  The  cost  of  car- 
ing for  many  dependents  who  might  be  self-supporting,  and  of  a 
considerable  number  of  criminals  whose  crimes  are  due  to 
poverty,  falls  upon  society  as  a  whole.  Looked  at  from  the 
esthetic  point  of  view,  the  presence  of  poverty  is  a  blot  and  an 
eyesore  upon  civilization,  and  the  life  of  society  as  a  whole  will  be 
raised  to  a  higher  plane  and  made  more  refined  if  this  blot  can 
be  removed."  ^ 

We  can  now  discern  how  these  features  of  the  present  eco- 
nomic organization  of  society  influence  crime.  The  unsettled 
economic  conditions  due  to  the  trade  cycle  are  reflected  in  the 
correlation  between  fluctuations  in  prices  and  wages  and  changes 
in  the  extent  of  crime.  The  great  inequality  in  the  distribution 
of  wealth,  as  indicated  by  the  vast  difference  in  the  economic 
welfare  of  the  poor  and  the  rich,  is  reflected  in  the  great  disparity 
between  the  criminality  of  the  poor  and  of  the  wealthy  classes,  as 
indicated  by  the  economic  status  of  the  criminals. 

These  economic  conditions  bring  a  good  deal  of  pressure  to 
bear  upon  many  individuals  to  commit  criminal  acts.  Many  of 
the  weaker  individuals,  and  some  of  the  stronger  ones  as  well, 
are  certain  to  yield  to  this  pressure.  In  some  cases  this  pressure 
arises  out  of  a  lack  even  of  the  means  of  subsistence,  so  that  the 
individual  faces  starvation.  In  a  larger  number  of  cases  the 
pressure  arises  out  of  a  desire  for  a  higher  standard  of  living,  or, 
at  any  rate,  what  the  criminal  regards  as  a  higher  standard. 
Some  writers  assert  that  privation  is  rarely  ever  the  cause  of 
crime,  because  the  destitute  person  will  not  usually  steal  the 
food  or  the  clothing  which  he  actually  needs.^  But  this  fact 
does  not  disprove  that  privation  is  the  cause  of  many  of  these 
crimes,  for  under  many  circumstances  it  would  be  inconvenient 
to  steal  the  necessary  articles,  and  much  more  profitable  to  steal 
something  else  of  greater  value,  and  then  to  secure  with  the 
proceeds  of  the  theft  the  things  actually  needed. 

The  immediate  causes  of  the  condition  of  poverty  or  relative 

^Poverty  and  Social  Progress,  pp.  225-7.  In  this  book  I  have  discussed 
at  length  the  causes  of  poverty,  such  as  unemployment,  low  wages,  the 
pressure  of  population  upon  the  means  of  subsistence,  etc.,  and  the  reme- 
dial and  preventive  measures  by  means  of  which  poverty  can  be  lessened 
and  prevented. 

*  For  example,  H.  Joly  makes  this  mistake  in  his  La  France  critninelle, 
Paris,  1889,  pp.  357-8. 


THE   ECONOMIC   BASIS   OF   CRIME  9 1 

poverty  which  gives  rise  to  this  economic  pressure  are  numerous. 
Among  the  principal  ones  are  the  large  amount  of  unemployment 
which  is  caused  mainly  by  the  instability  of  industry,  and  the 
low  wages  which  result  largely  from  the  weak  position  of  the 
worker  as  compared  with  the  position  of  his  employer.  Out  of 
poverty  grow  pauperism,  mendicancy  and  vagrancy,  which  are 
frequently  in  themselves  forms  of  crime,  and  still  more  fre- 
quently lead  to  crime. 

But  it  is  not  only  the  economic  pressure  upon  the  poor  which 
leads  to  crime,  but  also  the  pressure  upon  many  individuals  who 
are  not  poor,  or,  at  any  rate,  are  poor  only  as  compared  with  the 
wealthy.  In  these  cases  the  pressure  takes  the  form  of  a  desire 
for  a  higher  standard  of  living.  This  accounts  for  most  of  the 
numerous  crimes  committed  by  the  class  of  small  merchants  and 
traders.  It  also  accounts  for  the  crimes  involving  much  larger 
amounts  of  money  committed  by  big  speculators,  fraudulent 
bankrupts,  clever  swindlers  and  exploiters  of  the  public.  From 
these  criminals  we  pass  by  imperceptible  degrees  to  the  profes- 
sional criminals,  whose  careers  are  determined  to  a  large  extent 
by  economic  considerations. 

I  have  already  proved  that  the  criminal  record  of  wealthy 
classes  is  far  below  that  of  the  poorer  classes.  But  while  great 
wealth  does  not  encourage  criminality,  it  may  lead  to  a  good 
deal  of  vice.  This  is  most  likely  to  happen  when  it  is  not  ac- 
companied by  culture  and  refinement.  It  frequently  leads  to 
excessive  indulgence  in  alcoholic  liquors,  though  not  for  the  same 
reasons  as  in  the  case  of  the  poor.  It  leads  to  various  other 
forms  of  riotous  living  which  are  possible  only  for  the  rich,  and 
the  desire  for  which  is  stimulated  by  the  satiety  which  arises  out 
of  great  luxury. 


CHAPTER  VII 
THE  POLITICAL  BASIS  OF  CRIME 

Political  organization  and  crime  —  Theories  of  government  —  Govern- 
mental responsibility  for  crime:  inefficient  and  corrupt  government  — 
Influence  of  war  and  militarism  upon  crime. 

In  one  sense  it  is  true  that  crime  is  due  entirely  to  political 
factors.  As  I  have  stated  in  an  earlier  chapter,  there  could  be 
no  crime  in  the  strict  sense  of  the  term  without  political  organiza- 
tion. Not  until  government  came  into  being  could  certain  acts 
be  stigmatized  by  the  lavsr  as  criminal.  Consequently,  the  na- 
ture of  the  acts  which  are  criminal  at  any  time  and  place  will  be 
determined  in  large  part  by  the  nature  of  the  political  organiza- 
tion. 

Under  a  monarchical  system  of  government  the  penal  law  will 
jealously  safeguard  the  rights  and  interests  of  the  reigning 
dynasty,  and  the  stronger  and  the  more  despotic  the  monarch 
the  larger  will  be  the  portion  of  the  penal  code  which  is  devoted 
to  offenses  against  him.  In  similar  fashion  under  an  oligarchy 
the  penal  code  will  be  devoted  largely  to  safeguarding  the  rights 
and  interests  of  the  dominant  class.  To  the  extent  to  which  the 
government  is  democratic  it  will  be  devoted  to  protecting  the 
interests  of  society  as  a  whole. 

Furthermore,  the  political  organization  of  the  world  as  a 
whole  is  of  significance  in  this  connection.  At  present  nation- 
alism reigns  supreme,  and  promotes  a  vast  amount  of  warfare, 
the  effect  of  which  I  shall  discuss  presently.  If  the  world  ever 
passes  from  the  regime  of  nationalism  to  internationalism,  and 
something  in  the  nature  of  a  world  state  is  established,  this 
great  change  will  doubtless  influence  the  penal  code. 

But  in  addition  to  prescribing  what  acts  are  to  be  stigmatized 
as  criminal,  the  government  and  the  political  organization  in 
general  are  among  the  numerous  factors  which  determine  how 
many  crimes  are  to  be  committed,  and  by  whom  they  are  to  be 
committed.   The  government  is  a  direct  cause  of  crime  when  it  is 


THE  POLITICAL  BASIS   OF  CRIME  93 

maladministered  in  such  a  fashion  as  to  be  an  immediate  factor 
for  criminal  conduct.  It  is  an  indirect  cause  of  crime  to  the 
extent  to  which  it  creates  conditions  which  encourage  criminal 
conduct  and  fails  to  provide  conditions  which  would  prevent 
such  conduct.  I  shall  discuss  first  the  indirect  influence  of 
government. 

Political  Organization  and  Crime 

It  is  evident  that  the  way  in  which  the  government  is  or- 
ganized and  the  nature  of  the  laws  promulgated  and  enforced 
by  it  will  have  some  effect  upon  economic  and  other  social  condi- 
tions. But  the  opinion  of  any  one  as  to  the  extent  to  which 
these  conditions  can  and  should  be  influenced  by  the  govern- 
ment, and  consequently  the  extent  to  which  the  government 
can  be  held  responsible  for  criminal  conduct,  will  depend  upon 
his  theory  of  the  functions  of  government.  There  have  been 
many  of  these  theories  which  may  be  briefly  classified  and  de- 
scribed as  follows. 

At  one  extreme  is  the  individualistic  type  of  theory  according 
to  which  the  only  function  of  government  is  to  regulate  the  con- 
duct of  the  individual  to  the  minimum  degree  necessary  for  the 
maintenance  of  order,  but  to  undertake  no  economic  or  other 
social  functions  whatsoever.  This  type  of  theory  is  represented 
by  the  laissez  /aire  philosophers.  At  the  other  extreme  is  the 
socialist  theory  of  government  according  to  which  the  govern- 
ment shall  own  and  operate  all  economic  enterprizes,  so  that  all 
economic  activities  shall  be  political  as  well  as  economic  in  their 
character.  Between  these  two  extremes  are  many  theories, 
some  of  which  are  more  or  less  individualistic  in  character,  and 
others  are  more  or  less  socialistic.  The  representatives  of  these 
theories  usually  assume  the  welfare  of  society  as  the  criterion  of 
governmental  activity,  so  that  these  theories  may  be  called 
social  welfare  theories  of  government.  Each  of  these  theorists 
contends  that  the  government  shall  extend  its  economic  ac- 
tivities as  far  as  he  thinks  will  be  conducive  to  social  welfare. 
Consequently,  according  to  the  different  social  welfare  theories 
the  government  should  extend  its  economic  activities  in  varying 
degrees,  and  the  more  socialized  theories  permit  of  extensive 
governmental  activity  approaching  that  of  the  socialist  state. 


94  CRIMINOLOGY 

According  to  the  individualistic  theory  the  state  is  not  at  all 
or  only  to  a  very  slight  extent  responsible  indirectly  for  criminal 
conduct.  It  is  directly  responsible  for  such  conduct  to  the  extent 
to  which  it  fails  to  maintain  order.  According  to  the  social  wel- 
fare theories  the  state  is  responsible  indirectly  for  criminal  con- 
duct to  a  varying  degree.  According  to  the  socialist  theory  it  is 
almost  entirely  responsible,  both  directly  and  indirectly.  The 
theorists  of  the  individualistic  school  usually  assume  that  crim- 
inal conduct  is  inevitable  and  permanent,  because  it  arises  out 
of  immutable  human  traits  which  cannot  be  influenced  by  polit- 
ical means.  The  socialists  insist  that  criminal  conduct  is  largely 
preventable,  and  would  exist  only  to  a  slight  extent  under  the 
socialist  state. 

It  is  impossible  to  discuss  these  theories  at  length  here,  since 
they  involve  very  complicated  and  perplexing  problems.  Polit- 
ical organization  is  in  large  part  a  reflection  of  economic  and 
social  conditions  in  the  past,  but  it  becomes  in  turn  an  important 
factor  in  determining  these  conditions  in  the  present.  All  of  the 
civilized  governments  of  today  are  based  upon  social  welfare 
theories,  though  they  differ  considerably  amongst  themselves 
as  to  the  extent  to  which  they  extend  their  economic  and  other 
social  activities.  We  shall,  therefore,  assume  for  the  present 
the  general  point  of  view  of  the  social  welfare  theories  and  glance 
briefly  at  the  ways  in  which  the  government  is  indirectly  re- 
sponsible for  some  of  the  criminal  conduct. 

Governmental  Responsibility  for  Crime 

Public  sanitation  and  hygiene  are  necessarily  in  the  hands 
of  the  government,  and  the  extent  to  which  and  the  efl&ciency 
with  which  they  are  cared  for  determines  in  part  the  health 
and  physical  well-being  of  the  populace,  which  in  turn  reacts 
upon  criminal  conduct.  The  construction  and  arrangement  of 
dwelling-houses  and  other  buildings  in  towns  and  cities  is 
regulated  by  the  government,  and  this  regulation  and  planning 
affects  materially  the  living  conditions  of  the  inhabitants.  The 
extent  to  which  and  the  efficiency  with  which  educational 
facilities  are  furnished  by  the  government  affects  materially 
the  intellectual  traits  of  the  people.  The  manner  in  which  and 
the  extent  to  which  the  use  of  alcoholic  liquors,  drugs,  and  other 


THE   POLITICAL  BASIS   OF  CRIME  95 

noxious  substances  is  regulated  and  restricted  by  the  govern- 
ment has  more  or  less  influence  upon  criminal  conduct. 

All  of  the  above  measures  are  now  performed  to  a  greater  or 
less  degree  by  civilized  governments.  The  state  may  also  be 
indirectly  responsible  for  some  criminal  conduct  by  imposing 
oppressive  restrictions  upon  its  citizens.  For  example,  rigid 
marriage  laws  lead  to  rape  and  other  sexual  crimes,  while  free 
marriage  and  divorce  encourage  satisfactory  sexual  and  domestic 
conditions. 

But  beyond  these  measures  are  measures  which  reach  much 
further,  and  which  are  intended  to  bring  about  much  greater 
changes  in  society.  Some  of  these  measures  have  been  adopted 
by  many  of  the  civilized  governments  of  the  world.  Several  of 
these  measures  are  intended  to  change  the  distribution  of  wealth 
so  as  to  make  it  more  equal.  Among  these  measures  are  various 
forms  of  taxation,  wage  legislation,  price  legislation,  etc.  Other 
measures  are  directed  towards  stabilizing  commerce  and  in- 
dustry, so  as  to  eliminate  as  far  as  possible  the  fluctuations  and 
instability  described  in  the  last  chapter.  Among  these  measures 
are  the  organization  of  the  banking  system,  the  regulation  and 
restriction  of  speculation,  the  prevention  of  private  monopolistic 
control,  etc.  All  of  these  measures  are  more  questionable  in 
their  character,  in  the  first  place,  as  to  whether  they  are  com- 
petent to  attain  the  objects  towards  which  they  are  directed, 
and,  in  the  second  place,  as  to  whether  they  will  lessen  the 
amount  of  criminal  conduct.  I  have  not  the  space  to  discuss 
these  problems,  but  will  point  out  the  dangers  involved  in  all 
such  legislation  so  far  as  it  bears  upon  criminal  conduct. 

In  the  first  place,  it  is  evident  that  by  creating  more  laws  new 
opportunities  for  the  violation  of  laws  are  brought  into  existence. 
In  this  fashion  the  total  number  of  criminal  acts  may  be  in- 
creased. However,  this  is  not  necessarily  an  evil  in  the  long  run 
in  the  case  of  a  specific  law,  for  the  law  may  do  more  good  in 
other  ways  than  it  does  evil  by  increasing  the  number  of  crimes. 
In  many  cases  this  is  a  difficult  question  to  decide.  In  similar 
fashion  the  abolition  of  restrictive  legislation  may  lessen  the 
number  of  violations  of  laws.  But  the  restrictions  may  be  of 
more  value  to  society  than  the  decrease  in  the  number  of  the 
violations  of  the  law. 

In  the  second  place,  much  legislation  and  regulation  on  the 


0  CRIMINOLOGY 

part  of  the  government  may  lead  to  an  excessive  amount  of 
restriction  and  social  control.  This  is  an  evil  in  itself,  for  all 
forms  of  social  control  are  evil  in  the  sense  that  they  restrict  the 
individual,  and  should  therefore  be  tolerated  only  to  the  extent 
that  they  are  absolutely  necessary  for  the  welfare  of  society. 
But  it  may  prove  to  be  an  evil  also  by  discouraging  individual 
initiative  unduly,  and  thus  decreasing  the  total  amount  of 
human  achievement.  This  may  indeed  prove  to  be  the  greatest 
evil  arising  out  of  too  much  legislation.  At  various  points  in 
this  book  I  shall  have  occasion  to  mention  these  dangers  with 
respect  to  certain  forms  of  legislation  and  governmental  regula- 
tion.^ 

There  are  many  ways  in  which  the  government  is  a  direct 
cause  of  crime.  It  may  give  rise  to  crime  because  it  is  a  bad 
form  of  government,  or  because,  even  though  a  good  form  of 
government,  it  is  badly  administered.  The  excellence  of  the 
form  of  the  government  will  depend  largely  upon  the  place  and 
time  in  which  it  exists.  A  form  of  government  which  is  excellent 
for  a  barbarous  people  may  be  very  undesirable  for  a  highly 
civilized  people.    Consequently,  it  is  impossible  to  generalize 

^  Two  eminent  Italian  criminologists,  Ferri  and  Garofalo,  represent  the 
opposing  points  of  view  with  respect  to  the  limitations  upon  legislation  and 
governmental  regulation.  Ferri  advocates  a  large  number  of  measures 
which  he  calls  "substitutes  for  punishment"  (sostilidivi  penali),  or  "equiva- 
lents of  punishment"  {equivalents  des  peines).  It  would  be  more  correct  to 
call  them  "preventives  of  crime."  Among  these  are  free  trade,  freedom 
to  emigrate,  taxes  upon  the  rich,  public  works,  drastic  regulation  of  the 
manufacture  and  sale  of  alcohol,  freedom  of  marriage  and  divorce,  etc. 
(E.  Ferri,  Criminal  Sociology,  Boston,  191 7,  Part  II,  Chap.  5.) 

Garofalo  opposes  most  of  these  measures  on  the  ground  that  the  state 
is  not  omnipotent  to  attain  the  ends  sought.  He  expresses  his  opinion  with 
respect  to  the  limitations  upon  legislation  as  follows:  "In  the  prevention  of 
crime,  legislative  measures  of  general  application  cannot  go  beyond  the 
maintenance  of  a  good  police  system,  the  wise  administration  of  justice, 
and  the  indirect  development  of  a  public  moral  education  which  will  tend 
to  counteract  certain  vicious  habitudes  ordinarily  the  cause  of  crime.  Uf)on 
these  habitudes  it  cannot  act  directly  except  in  some  special  cases,  as  in 
the  regulation  of  liquor-selling,  gambling,  and  the  carrying  of  arms.  Aside 
from  such  instances,  the  state  should  be  careful  how  it  interferes  with  the 
individual  rights  of  the  citizen.  For  notwithstanding  the  laudable  object 
which  moves  it  to  act,  its  interference  is  bound  to  develop  abuses,  to  de- 
generate into  unendurable  violation  of  personal  liberty,  and  to  be  produc- 
tive of  new  disobediences  on  the  part  of  the  citizen."  (R.  Garofalo,  Crimi- 
nology, Boston,  1914,  pp.  189-190.) 


THE   POLITICAL  BASIS   OF   CRIME  97 

with  respect  to  the  form  of  government.  In  similar  fashion, 
the  excellence  of  the  administration  will  depend  in  part  upon  the 
place  and  time. 

Political  corruption  in  the  administration  of  the  government 
is  in  itself  a  form  of  crime.  Even  when  it  is  not  criminal  in  the 
technical  legal  sense,  it  is  at  least  vicious.  But  it  is  far  more  in- 
jurious as  a  cause  of  crime  because  of  the  gross  inefficiency  it 
introduces  into  the  administration  of  the  government.  It 
usually  arises  partly  out  of  the  form  of  the  government,  which 
fails  to  furnish  a  sufficient  number  of  checks  and  safeguards 
against  dishonesty,  and  partly  out  of  the  state  of  public  opinion 
and  public  morals,  which  breeds  the  corrupters  and  does  not 
sufficiently  reprehend  their  dishonesty.  When  this  corruption 
becomes  extensive,  it  usually  weakens  the  police  by  destroying 
its  morale,  it  may  invade  the  courts  of  public  justice,  and  is  very 
likely  to  promote  inefficiency  in  the  administration  of  the  penal 
institutions.  In  these  ways  it  vitiates  largely  the  efficiency  of  the 
law  in  suppressing  crime. 

In  addition  to  the  evil  influence  of  political  corruption  the 
administration  of  the  law  may  be  greatly  weakened  and  vitiated 
by  other  causes.  The  police  force  frequently  is  weak  and  in- 
efficient because  it  is  not  properly  trained  and  organized.  The 
so-called  "police  system"  of  corruption  may  grow  up  within  the 
police  department  itself  because  impossible  tasks,  such  as  un- 
enforceable laws  against  vice,  have  been  laid  upon  the  police 
by  the  legislature  and  the  public.  Nothing  can  be  more  disas- 
trous to  the  effective  suppression  of  crime  than  the  weakening 
and  corrupting  of  the  police  agency,  which  is  the  physical  arm 
of  the  law  for  its  own  enforcement. 

The  law  has  usually  been  unscientific  inasmuch  as  it  has  not 
been  based  upon  the  available  scientific  knowledge  as  to  the 
causes  of  crime  and  the  traits  of  the  criminal.  This  knowledge 
can  be  used  so  as  to  render  much  more  effective  both  the  sup- 
pression and  the  prevention  of  crime.  The  government  has 
failed  to  gather  and  make  use  of  statistics  which  would  be  of 
great  value  in  measuring  the  effects  of  the  different  kinds  of 
penal  treatment,  as  well  as  by  throwing  much  light  upon  the 
causes  and  conditions  of  crime. 

The  courts  have  frequently  been  weak  and  inefficient.  This 
has  been  due  in  part  to  political  influence,  whether  corrupt  or 


qS  criminology 

otherwise.  But  it  has  probably  been  due  more  to  the  fact  that 
the  judges  have  usually  not  been  trained  and  selected  in  a  proper 
manner.  It  has  also  been  due  in  large  part  to  abuses  of  the 
jury  system,  and  perhaps  to  a  large  extent  to  fundamental 
defects  in  the  jury  system  itself. 

Methods  of  penal  treatment  have  usually  been  inefficient,  and 
frequently  have  been  so  bad  as  to  cause  more  crime  than  they 
have  suppressed  and  prevented.  Punishment  has  usually  been 
based  upon  vengeance,  which  cannot  furnish  a  rational  criterion 
of  the  efficacy  of  penal  methods.  In  recent  times  it  has  been 
based  to  a  considerable  extent  upon  the  principle  of  deterrence. 
But  inasmuch  as  accurate,  scientific  methods  of  measuring  the 
extent  to  which  punishment  actually  deters  have  not  been  ap- 
plied, it  has  been  impossible  to  ascertain  whether  or  not  any  de- 
terrence has  been  attained.  Capital  punishment,  torture,  im- 
prisonment of  various  sorts,  transportation,  etc.,  have  proved 
more  or  less  ineffective  in  various  degrees,  and  have  stimulated 
a  good  deal  of  crime  in  several  ways.  Certain  methods,  such  as 
the  method  of  reparation,  which  may  prove  to  be  effective,  have 
been  tried  very  little  or  not  at  all.  In  fact,  the  whole  subject 
of  penal  treatment  needs  a  thoroughgoing  scientific  study  on 
the  basis  of  an  extensive  knowledge  of  the  causes  of  crime  and 
of  the  traits  of  the  criminal.  No  government  has  as  yet  done 
much  towards  making  such  a  study. 

But  not  only  is  the  administration  of  penal  law  of  importance 
for  the  prevention  of  crime.  If  the  civil  law  is  not  efficiently 
administered,  its  maladministration  is  likely  to  lead  to  at  least 
a  few  crimes,  while  an  efficient  administration  of  the  civil  law 
is  a  more  or  less  powerful  preventive  of  crime.  If  the  civil  law 
is  maladministered,  dissensions  and  conflicts  are  sure  to  arise 
between  some  of  the  litigants  or  would-be  litigants,  and  in 
some  cases  lead  to  crimes  against  the  person  or  against  property 
or  both.  An  efficient  administration  of  justice  in  the  civil 
courts,  on  the  contrary,  obviates  most  of  these  differences,  and 
promotes  a  spirit  of  harmony  and  good  will  in  the  public  at 
large  which  is  likely  to  prevent  some  crimes.  For  the  attain- 
ment, therefore,  both  of  penal  and  of  civil  justice  it  is  important, 
in  the  first  place,  that  the  civil  law  be  based  upon  rational, 
scientific  principles,  and,  in  the  second  place,  that  the  civil  courts 
administer  the  civil  law  efficiently. 


the  political  basis  of  crime  99 

Influence  of  War  and  Militarism  upon  Crime 

Before  finishing  this  discussion  of  the  political  factors  for 
crime  I  wish  to  touch  briefly  upon  war  and  militarism  in  rela- 
tion to  crime.  In  the  present  day  war  arises  largely  out  of  the 
prevailing  national  political  organization  of  the  world.  If  the 
present  regime  of  nationalism  is  ever  superseded  by  an  inter- 
national political  organization,  such  as  a  world  state,  much  of 
this  warfare  will  perforce  disappear.  However,  that  time  is 
probably  still  far  distant,  so  that  it  is  important  to  consider  the 
influence  of  war  and  militarism  upon  crime. 

The  effects  of  war  are  so  complicated  that  it  is  difl5cult  to 
analyze  and  measure  them  accurately.  There  is  reason  to  be- 
lieve that  war  has  both  favorable  and  unfavorable  immediate 
eff^ects  upon  crime.  But  there  is  much  difference  of  opinion 
as  to  whether  its  ultimate  effect  is  favorable  or  unfavorable. 

Statistical  records  indicate  that  criminality  frequently  dimin- 
ishes apparently  during  time  of  war.  This  doubtless  is  due  in 
large  part  to  the  fact  that  many  of  those  who  would  otherwise 
be  engaged  in  criminal  activity  volunteer  for  military  service 
or  are  drafted  into  the  army.  Consequently,  their  criminal 
tendencies  towards  murder,  theft,  etc.,  are  furnished  an  outlet 
in  the  opportunities  to  kill,  to  plunder,  etc.,  in  the  course  of 
warfare.  War  therefore  becomes,  in  a  measure,  a  substitute  for 
crime  for  these  persons.  But  this  apparent  diminution  of  crimi- 
nality during  time  of  war  is  probably  due  in  part  to  the  fact 
that  the  repression  of  crime  is  usually  weakened  during  time  of 
war,  so  that  many  crimes  are  not  pursued  and  punished.  This 
may  explain  why  the  criminality  of  women  and  of  children  as 
well  as  of  men  sometimes  appears  to  diminish  during  time  of 
war. 

Some  writers,  however,  contend  that  war  diminishes  crime 
by  acting  as  a  moral  influence.  Their  opinion  is  that  war  stim- 
ulates a  condition  of  emotional  excitement  under  which  many 
desires  and  impulses  which  would  otherwise  assume  a  criminal 
form  are  turned  into  patriotic,  national,  and  social  channels, 
and  results  in  efforts  in  behalf  of  the  public  welfare.^    War  also 

'  Tarde  expresses  a  similar  idea  in  the  following  words:  "The  truth  of 
the  matter  is  that  crime  has  become  an  evil  without  anything  to  compen- 
sate for  it  since  it  has  advantageously  been  replaced  by  militarism  and 
warfare.    An  army  is  a  gigantic  means  of  carrying  out,  by  massacre  and 


lOO  CRIMINOLOGY 

stimulates  greatly  the  virtue  of  courage  and  leads  to  many 
deeds  of  valor.  There  is  probably  a  measure  of  truth  in  this  idea, 
especially  when  the  war  is  for  the  purpose  of  carrying  out  a  great 
popular  ideal.  But  it  must  be  remembered  that  warfare  in- 
evitably engenders  a  vast  amount  of  hatred  and  vengeance 
towards  enemies,  which  probably  more  than  coimterbalances 
this  so-called  moral  influence  of  war. 

Militarism  has  an  influence  upon  crime  during  times  of  peace 
as  well  as  during  wartime.  Military  service  is  reputed  to  have 
both  a  moral  and  an  immoral  influence  upon  conscripts  and 
volunteers.  It  is  believed  by  some  persons  that  military  train- 
ing furnishes  an  excellent  discipline  for  the  character.  It  doubt- 
less encourages  to  a  certain  extent  the  virtues  of  obedience, 
orderliness,  regularity,  etc.  But,  on  the  other  hand,  military 
organization  is  necessarily  of  such  a  nature  as  to  develop  servil- 
ity in  the  common  soldiers  and  a  domineering  spirit  in  the  officers. 
It  also  tends  to  develop  contempt  for  and  brutality  towards 
the  common  civilian  class. 

Furthermore,  the  conditions  under  which  military  service  is 
usually  performed  are  bad,  especially  for  the  young  conscripts. 
These  youths  are  torn  away  from  their  homes  at  a  period  of  life 
when  they  are  likely  to  form  bad  habits.  They  are  thrown  into 
the  garrison  life  in  large  cities  and  elsewhere  in  which  they  may 
easily  acquire  vices  and  diseases  which  will  affect  their  conduct 
for  evil  throughout  the  remainder  of  their  lives. 

It  goes  without  saying  that  the  extent  to  which  these  evils 
will  prevail  in  military  service  will  depend  in  part  upon  the  way 
in  which  an  army  is  organized  and  the  attention  which  is  paid 
to  conditions  of  living  for  the  soldiers  by  those  in  charge  of  the 

pillage  on  a  vast  scale,  the  collective  designs  of  hatred,  vengeance,  or  envy, 
which  one  nation  stirs  up  against  another.  Condemned  under  their  in- 
dividual form,  these  odious  passions,  cruelty  and  greed,  seem  to  be  praise- 
worthy vmder  their  collective  form.  Why?  First  of  all,  because  they  quell 
many  little  internal  conflicts  though  they  bring  about  an  external  one;  also, 
because  they  lead  to  a  warlike  solution  of  this  very  difficulty,  and  to  the 
increase  in  territory  as  a  result  of  the  peace  which  is  bound  to  follow.  The 
effect  of  militarism  is  to  exhaust  the  criminal  passions  scattered  through 
every  nation,  to  purify  them  in  concentrating  them,  and  to  justify  them  by 
making  them  serve  to  destroy  one  another,  under  the  superior  form  which 
they  thus  assume.  After  all  is  said  and  done,  war  enlarges  the  sphere  of 
peace,  as  crime  formerly  used  to  enlarge  the  sphere  of  honesty.  This  is  the 
irony  of  history."    (G.  Tarde,  Penal  Philosophy,  Boston,  1912,  p.  422.) 


THE   POLITICAL  BASIS   OF  CRIME  lOT 

army.  If  an  army  is  as  democratically  organized  as  is  possible 
for  a  military  body,  and  if  the  government  provides  the  best 
possible  living  conditions  for  the  soldiers,  these  evils  will  be 
reduced  to  a  minimum.  But  even  if  this  end  is  attained,  it  is 
doubtful  if  the  benefits  derived  from  military  service  can  coun- 
terbalance its  evils. 

It  has  been  asserted  by  some  that  the  criminality  of  the 
soldier  class  is  higher  than  that  of  the  civilian  population.  But 
this  appears  doubtful  when  the  criminality  of  the  soldiers  is 
compared  with  that  of  the  male  civilian  population  of  about  the 
same  ages.-^  Wherever  it  is  true,  the  difference  usually  is  not 
great,  and  is  probably  due  in  part  at  least  to  the  fact  that  the 
soldier  is  guilty  of  various  military  offenses,  such  as  insubordi- 
nation and  malingering,  which  the  civilian  cannot  commit. 
It  may  indeed  be  true  that  in  some  places  the  criminality  of  the 
soldier  class  is  below  that  of  the  civilian  population,  owing  to  the 
strict  discipline  maintained  over  the  soldiers.  This  fact,  however, 
does  not  disprove  the  evil  effects  of  military  service,  for  these 
effects  may  display  themselves  later  in  the  lives  of  the  soldiers, 
after  their  military  service  is  ended. 

Turning  to  the  indirect  but  much  more  far-reaching  effects 
of  war  and  militarism  upon  crime,  we  must  note  first  the  spirit 
of  lawlessness  and  violence  which  is  encouraged  by  a  war,  and 
which  usually  persists  for  some  time  after  the  war  ends  and  may 
manifest  itself  in  an  increase  of  crime.  The  history  of  every 
nation  furnishes  more  or  less  evidence  of  this  condition.  War 
arouses  the  passions  of  hatred,  vengeance,  and  envy,  and  re- 
quires the  committing  of  many  deeds  of  violence.  Consequently, 
it  is  not  surprising  that  it  should  lead  to  this  spirit  of  lawlessness 
and  violence.^ 

1  Cf.  C.  Lombroso,  Crime,  Its  Causes  and  Remedies,  Boston,  191 1,  pp.  201- 
202. 

*  The  atrocities  committed  in  the  course  of  the  great  war  which  is  raging 
in  Europe  and  elsewhere  at  the  time  of  the  present  writing  furnish  numerous 
illustrations  of  the  spirit  of  lawlessness,  violence,  and  cruelty  aroused  by 
international  warfare.  It  is  only  necessary  to  mention  the  ravishment  of 
Belgium,  Northern  France,  Poland,  and  Serbia,  and  the  massacre  of  Ar- 
menians in  Turkey  to  realize  the  truth  of  this  statement. 

The  Carnegie  Endowment  for  International  Peace  appointed  an  interna- 
tional commission  to  inquire  into  the  causes  and  conduct  of  the  Balkan  wars 
of  1912  and  1913.    In  its  report  the  Commission  stated  as  follows  the  moral 


I02  CRIMINOLOGY 

But  the  results  from  war  which  probably  have  the  greatest 
indirect  influence  upon  crime  are  the  economic  effects  of  war. 
These  effects  may  be  briefly  stated  as  follows.^ 

War  is  almost  certain  to  reduce  the  aggregate  production  of 
wealth,  thus  making  society  poorer  at  the  end  than  it  was  at 
the  beginning  of  a  war.  This  loss  is  due  to  the  destruction  of 
property  by  military  operations  and  to  the  cessation  in  the 
production  of  wealth  during  wartime.  It  goes  without  saying 
that  most  of  the  goods  produced  for  war  purposes  are  worthless 
at  the  end  of  a  war.  This  means  that,  unless  something  is  done 
to  distribute  wealth  more  evenly,  the  working  class  will  be 
poorer  at  the  end  of  a  war. 

Furthermore,  the  means  of  production  available  at  the  end 
of  a  war  are  likely  to  be  smaller.  Owing  to  the  reduction  in  the 
supply  of  wealth,  there  is  likely  to  be  a  shortage  of  capital. 
Owing  to  the  destruction  of  human  life,  there  may  be  a  shortage 
of  labor.  The  loss  of  life  caused  by  war  is  largely  of  male  adult 
laborers,  many  of  whom  are  skilled,  whose  rearing  and  training 
are  therefore  lost  to  society  and  diminish  the  productive  labor 
force. 

In  order  to  reconstruct  what  has  been  destroyed  by  the  war, 
and  to  raise  the  supply  of  wealth  to  the  normal,  production  is 
almost  certain  to  be  brisk  after  a  war,  within  the  limits  placed 
by  the  available  capital.    Inasmuch  as  the  supply  of  labor  has 

effect  upon  the  nations  involved  of  the  atrocities  committed  in  the  course 
of  these  wars:  "Reference  has  already  been  made  to  the  reflex  psychological 
effect  of  these  crimes  against  justice  and  humanity.  The  matter  becomes 
serious  when  we  think  of  it  as  something  which  the  nations  have  absorbed 
into  their  very  life,  —  a  sort  of  virus  which,  through  the  ordinary  channels 
of  circulation,  has  infected  the  entire  body  politic.  Here  we  can  focus  the 
whole  matter,  —  the  fearful  economic  waste,  the  untimely  death  of  no  small 
part  of  the  population,  a  volume  of  terror  and  pain  which  can  be  only  par- 
tially, at  least,  conceived  and  estimated,  and  the  collective  national  con- 
sciousness of  greater  crimes  than  history  has  recorded.  This  is  a  fearful 
legacy  to  be  left  to  future  generations."  {Report  of  the  International  Com- 
mission to  Inquire  into  the  Causes  and  Conduct  of  the  Balkan  Wars,  Washing- 
ton, 1914,  p.  269.) 

^  The  next  few  paragraphs  are  taken  in  part  from  my  Poverty  and  Social 
Progress,  New  York,  1916,  pp.  199-201.  In  that  book  I  have  described  at 
greater  length  the  economic  effects  of  war.  For  other  discussions  of  the 
influence  of  war  and  militarism  upon  crime,  see,  N.  Colajanni,  La  sociologia 
criminate,  Catania,  1889,  Vol.  TI,  pp.  572-588;  W.  Bonger,  Criminality  and 
Economic  Conditions,  Boston,  1916,  pp.  516-519. 


THE  POLITICAL  BASIS   OF   CRIME  I03 

diminished,  the  surviving  laborers  are  likely  to  get  better  wages 
and  to  suffer  less  from  unemployment.  In  other  words,  there 
comes  a  period  of  prosperity  which  benefits  both  the  employer 
and  the  worker.  It  is  indeed  a  sad  commentary  upon  the  eco- 
nomic organization  of  society  that  the  period  immediately 
following  a  war  is  frequently  much  preferable  to  many  a  period 
of  depression  during  times  of  peace.  This  fact  has  led  many 
to  think  that  war  is  a  good  thing,  because  of  the  stimulus  it 
apparently  gives  to  manufacturing  and  trade.  But  it  must  be 
remembered  that  industrial  activity  after  a  war  is  largely 
due  to  an  effort  to  get  back  to  the  condition  which  ex- 
isted before  the  war,  by  making  good  the  losses  mentioned 
above. 

It  must  also  be  remembered  that  the  payment  of  the  cost 
of  a  war  hangs  over  a  people  long  after  the  war  is  ended.  No 
modern  government  can  carry  on  a  war  very  long  without  rais- 
ing special  funds.  These  funds  are  secured  usually  by  issuing 
long  term  bonds,  which  are  purchased  in  the  main  by  capitaUsts, 
and  upon  which  interest  must  be  paid  for  many  years.  The 
question  as  to  who  pays  in  the  end  for  these  bonds  depends 
upon  the  incidence  of  the  taxes  by  means  of  which  they  are 
paid.  Up  to  the  present  time  it  is  doubtless  true  that  they  have 
been  paid  for  in  the  main  by  the  poorer  people,  upon  whom 
indirect  taxes  usually  fall  in  the  end.  So  that  wars  have  been 
paid  for  mainly  by  the  working  classes,  and  one  of  the  results 
of  modern  warfare  has  been  to  furnish  another  means  of  trans- 
ferring wealth  from  the  poor  to  the  rich;  for  these  bonds  have 
usually  furnished  safe  investments  at  fairly  good  rates  of  profit 
for  the  capitalists,  while  for  many  years  after  a  war  the  poor 
are  contributing  heavily  to  pay  the  interest  to  the  capitalists, 
and  ultimately  to  pay  back  the  principal.  If  wars  were  paid 
for  by  heavy  assessments  upon  the  rich  at  the  time  of  the  war, 
or  by  the  issue  of  bonds  to  be  paid  for  by  direct  taxes  upon  the 
rich,  such  as  inheritance  and  income  taxes,  a  war  would  no 
longer  be  a  force  for  making  the  poor  poorer  by  making  the 
rich  richer;  for  while  the  poor  would  not  gain  anything  through 
the  war,  they  would  not  lose  as  much  as  they  do  now,  and  the 
rich  would  not  become  richer  at  their  expense.  It  is  probable 
that  if  such  were  the  case,  there  would  be  much  less  war;  because 
the  rich  usually  have  much  influence  with  governments,  and 


I04  CRIMINOLOGY  . 

under  those  conditions  it  would  no  longer  be  to  the  interest  of 
the  rich  to  have  war.^ 

It  is  hardly  necessary  to  call  attention  to  the  heavy  expendi- 
ture between  wars  caused  by  miUtary  warfare.  So  long  as 
international  relations  are  based  on  the  theory  that  the  eco- 
nomic interests  of  nations  conflict,  war  will  continue  to  be  an 
imminent  possibility  for  every  nation.  Consequently,  every 
nation  must  maintain  itself  in  a  state  of  preparedness  for  war. 
This  means  constant  expenditure  for  munitions  and  other 
equipments  of  war,  and  for  the  services  of  fighting  men  who 
are  being  withdrawn  from  the  production  of  wealth.  And  as 
no  government  can  safely,  from  the  military  point  of  view, 
refuse  to  give  pensions,  for  a  long  period  after  every  war  of 
any  extent  there  must  be  heavy  expenditure  for  the  payment 
of  pensions.  In  most  cases  these  expenditures  are  paid  for  by 
means  of  taxes  whose  incidence  falls  upon  the  poorer  classes. 

War  and  mihtarism  are,  therefore,  factors  for  creating  eco- 
nomic conditions  which,  as  I  have  shown  in  the  last  chapter, 
encourage  crime.  They  accentuate  the  inequality  in  the  dis- 
tribution of  wealth,  and  thus  swell  the  size  of  the  poorer  classes 
which  contribute  most  heavily  proportionately  to  the  criminal 
class.  Furthermore,  war  increases  the  instability  of  commerce 
and  industry  by  disturbing  the  normal  processes  of  manufacture 
and  trade.  This  is  well  illustrated  by  the  fact  that  even  the 
smaller  wars  cause  world-wide  disturbances  in  the  stock  markets 
and  in  the  prices  of  many  commodities,  while  a  great  war  is 
almost  certain  to  bring  on  a  world-wide  panic,  crisis,  and  period 
of  depression.  This  instability  in  economic  conditions,  by 
rendering  the  economic  status  of  many  persons  insecure  through 
loss  of  employment,  loss  of  property,  etc.,  increases  the  incite- 
ment and  the  temptation  to  acquire  criminal  habits.  Further- 
more, the  great  fluctuations  in  prices  in  the  stock  markets  and 
elsewhere  furnish  shrewd  speculators  excellent  opportunities  to 
amass  great  fortunes,  and  thus  to  enhance  the  inequality  in  the 
distribution  of  wealth.^ 

^  As  a  result  of  the  great  war  now  in  progress  (191 7)  the  rich  are  being 
heavily  taxed  in  some  of  the  belligerent  countries.  This  may  prove  to  have 
a  deterring  influence  upon  war  in  the  future,  provided  the  rich  do  not  suc- 
ceed in  transferring  the  incidence  of  these  taxes  upon  the  poor. 

^  See  my  Poverty  and  Social  Progress,  pp.  404-405. 


THE  POLITICAL   BASIS   OF   CRIME  I05 

In  the  last  analysis,  war  and  militarism  impede  the  progress 
of  civilization,  and  thus  delay  the  coming  of  a  state  of  society 
in  which  crime  will  in  all  probability  be  greatly  diminished. 
Social  progress  requires  the  constant  extension  of  cooperation 
m  the  form  of  the  division  of  labor,  in  order  thereby  to  augment 
the  sum  total  of  human  achievement.  The  principle  of  the 
division  of  labor  has  already  been  applied  to  a  far-reaching 
degree  in  many  fields  of  human  activity,  such  as  economic  af- 
fairs, science,  art,  etc.  But  unfortunately  it  has  so  far  been 
applied  only  to  a  slight  extent  in  political  affairs.  Nationalism 
is  now  the  fundamental  principle  in  political  organization,  and 
stands  as  a  barrier  against  the  division  of  labor  and  coopera- 
tion, not  only  in  political  matters  but  also  frequently  in  eco- 
nomic activities.  Generally  speaking  it  is  a  serious  hindrance 
to  the  diffusion  of  culture,  and  therefore  an  obstacle  to  the 
unification  and  organization  of  mankind  into  a  single  coherent 
social  organism.  Not  until  internationalism  supersedes  na- 
tionalism, and  something  in  the  nature  of  a  world  state  comes 
into  being,  can  civilization  attain  the  highest  possible  rate  of 
progress. 


CHAPTER  Vni 
THE  INFLUENCE  OF  CIVILIZATION  UPON  CRIME 

Religion  and  crime  —  Science  and  crime  —  Art  and  crime  —  The  press 
and  crime  —  The  advance  of  civilization  and  the  increase  of  crime. 

In  the  two  preceding  chapters  I  have  discussed  two  of  the 
most  important,  perhaps  the  most  important,  aspects  of  civiliza- 
tion in  their  relations  to  crime,  namely,  the  economic  and  the 
political  aspects.  There  are  other  aspects  of  civilization  and 
other  forces  at  work  in  our  civilization  which  must  be  discussed  in 
similar  fashion.  Furthermore,  it  is  essential  to  discuss  the  in- 
fluence of  the  progress  of  civilization  upon  crime,  in  order  to 
ascertain  what  eflfect  it  has  upon  crime,  both  with  respect  to 
kind  and  quantity. 

Religion  and  Crime 

In  Chapter  II  has  been  described  briefly  the  influence  of  magic 
and  religion  upon  the  origin  and  early  evolution  of  crime.  Mag- 
ical ideas  and  religious  beliefs  determined  in  large  part  what 
acts  were  to  be  included  in  the  early  categories  of  crimes.  With 
the  evolution  of  civilization  magical  ideas  have  lost  their  power 
almost  entirely,  because  of  the  obvious  failure  of  magical  at- 
tempts to  coerce  and  control  natural  processes,  and  because  ef- 
fective scientific  methods  have  superseded  the  ineffective  mag- 
ical methods.  Religion  also  has  lost  much  of  its  power,  and 
has  been  superseded  by  science  to  a  large  extent,  because  of  the 
apparent  failure  of  religious  attempts  to  propitiate  the  alleged 
spiritual  beings  which  are  reputed  to  control  the  processes  of 
nature.  However,  religion  has  one  great  advantage  for  survi- 
val over  magic. 

When  religious  attempts  fail,  it  is  always  possible  to  fall 
back  upon  the  hypothesis  that  the  gods  have  been  unwilling  to 
grant  the  requests  of  men.  Inasmuch  as  mankind  can  never 
hope  to  attain  absolute  knowledge  by  means  of  the  most  eff^ect- 
ive  human  method  of  acquiring  knowledge,  namely,  the  method 
of  science,  it  will  never  be  possible  to  disprove  categorically  the 


THE  INFLUENCE   OF  CIVILIZATION  UPON  CRIME  I07 

existence  of  these  hypothetical  spiritual  beings,  however  far- 
fetched and  improbable  these  hypotheses  may  be,  nor  the 
traits  attributed  to  them  by  religious  devotees.  Consequently, 
religion  still  retains  a  considerable  influence  which  must  be  dis- 
cussed in  relation  to  crime. 

Representatives  of  religion  frequently  assert  or  imply  that 
irreligion  is  a  potent  force  for  crime.  It  is  difficult  to  measure 
accurately  the  influence  of  religion  upon  crime.  But  so  far  as 
reliable  statistics  are  available  they  disprove  this  assertion  on 
the  part  of  the  religionists.  For  example,  Bonger  states  that 
according  to  the  census  of  1879  and  1909  in  the  Netherlands, 
the  percentage  of  those  who  were  not  church  members  increased 
from  0.31  to  4.97,  an  increase  of  over  1,500  per  cent  in  thirty 
years;  whereas  during  the  same  period  crime  decreased  in  ex- 
tent.^ This  indicates  that  apparently  the  diminution  of  religion 
as  measured  by  the  decrease  in  the  church  membership  was,  to 
say  the  least,  not  causing  an  increase  of  crime,  if  indeed  it  was 
not  lessening  the  amount  of  crime.  Bonger  has  also  prepared 
the  following  table,  based  upon  the  criminal  statistics  of  more 
than  126,000  individuals  sentenced  during  the  period  from  1901 
to  1909  in  the  Netherlands: —  ^ 

Religion  and  Crime  in  the  Netherlands,  igoi-ipog 
Number  Sentenced  to  100,000  of  the  Population  over  10  Years  Old 

Protestant      CalhoUc  Jc-jo         Not  Mem-         Total 

bers  of  Any      Popu- 

Religion         lation 

All  offenses 508.6  416. s  212.7  84.2  337.3 

Theft 40.0  54.8  25.5  9.6  43.9 

Aggravated  theft 19 -9  24.0  12.7  5.2  20.7 

Receiving  stolen  goods 2.6  3.5  p. 2  0.7  3.0 

Embezzlement 8.6  9.3  13.1  1.9  8.7 

Fraud 2.4  2.5  ;3.g  0.4  2.4 

Ofifenses    against    public    de- 
cency   1.9  3.4  2.0  0.5  2.4 

Minor  sexual  offenses i .2  i.o  0.3  0.2  10 

Rape 1.5  2.2  1.5  0.7  1.8 

Sexual    crimes    with   persons 

under  16 0.3  0.3  o.i  0.0  0.3 

All  sexual  crimes 5.1  7.1  4.1  1.6  5.7 

Rebellion 25.9  37.0  13.2  12.2  29.0 

Assaults 74.4  g8.3  43.2  20.1  80.1 

Serious  assaults 8.5  11 .0  3.9  1.9  9.1 

Homicide  and  murder 0.4  0.6  0.5  o.i  0.5 

^  W.  Bonger,  Criminality  and  Economic  Conditions,  Boston,  1916,  p.  208. 
*  W.  Bonger,  op.  cit.,  p.  209. 


Io8  CRIMINOLOGY 

As  Bonger  says,  the  conditions  revealed  by  this  table  are  that 
"the  first  place  is  almost  always  occupied  by  the  Catholics,  the 
second  by  the  Protestants,  and  then  come  the  Jews  (except  in 
cases  of  receiving  stolen  goods,  embezzlement,  and  fraud),  and 
the  minimum  of  criminality  (in  all  crimes  without  exception) 
is  shown  by  the  irreligious!"  ^ 

It  is,  of  course,  true  that  church  membership  is  not  a  perfect 
criterion  of  religiosity.  But  it  will  serve  as  a  rough  measure, 
because  there  are  irreligious  persons  in  the  churches  just  as 
there  are  religious  persons  who  do  not  belong  to  any  church. 
In  fact,  if  there  is  any  difference  whatever  in  this  respect,  the 
chances  are  that  there  are  more  irreligious  persons  who  belong 
to  churches  for  family,  business,  and  political  reasons,  or  simply 
through  inertia  because  they  were  born  into  them,  than  there 
are  religious  persons  who  do  not  care  to  join  a  church. 

The  relative  criminality  of  the  adherents  of  the  different 
religions  is  also  of  some  importance.  In  Germany,  during  the 
years  1892- 1901,  the  average  number  of  persons  convicted 
per  100,000  civilians  of  each  faith  was:  —  ^ 

1,361  CathoHc  Christians; 

1,122  Evangelical  Christians; 

1,030  Jews. 

The  German  statistics  confirm  the  Dutch  statistics  given 
above.  The  low  criminality  of  the  Jews  is  probably  due  to  the 
fairly  high  average  prosperity  of  the  Jews  in  both  of  these  coun- 
tries, and  to  the  strong  family,  racial,  and  religious  organization 
amongst  them.  As  a  member  of  a  small  and  more  or  less  alien 
racial  and  religious  community,  there  is  probably  more  or  less 
social  pressure  upon  the  individual  Jew  to  refrain  from  breaking 
the  law  in  order  to  avoid  bringing  hostile  criticism  upon  his 
community  from  without  the  group. 

The  high  criminality  of  the  Catholics  is  sometimes  attributed 
in  part  to  their  practise  of  auricular  confession.  It  doubtless 
happens  that  some  ignorant  persons  are  emboldened  to  commit 
crimes  because  they  depend  upon  auricular  confession  and  the 
performance  of  the  penance  imposed  upon  them  to  absolve  them 
from  the  consequences  of  their  crimes.  But  in  other  cases  this 
form  of  confession  has  probably  led  to  the  reparation  of  crimes, 

*  Op.  ciL,  p.  209. 

*  G.  Aschafifenburg,  Crime  and  Its  Repression,  Boston,  1913,  p.  52. 


THE   INFLUENCE   OF   CIVILIZATION   UPON  CRIME  IO9 

or  to  a  restraint  upon  would-be  criminals  from  committing 
crimes.  So  that  it  is  impossible  to  determine  whether  it  has 
encouraged  more  crime  than  it  has  discouraged.  There  can  be 
no  doubt,  however,  that  the  religious  doctrine  of  the  forgiveness 
of  sins  after  repentance  has  frequently  encouraged  persons  of 
weak  character  to  commit  immoral  and  criminal  acts.  Whether 
or  not  this  has  been  more  true  of  the  Catholic  religion  than  of 
other  religions  which  hold  the  same  tenet,  it  is  difficult  to  say. 
It  may  have  as  much  influence  among  some  of  the  Protestant 
sects.  The  Christian  doctrine  of  the  forgiveness  of  sins  possesses 
this  evil  influence  because  it  disseminates  the  grossly  erroneous 
notion  that  repentance  absolves  a  person  from  responsibility 
for  the  immorality  of  his  past  conduct.  It  would  be  difficult  to 
find  a  more  anti-social  and  immoral  religious  doctrine. 

A  fact  which  is  probably  of  much  greater  significance  with 
regard  to  the  high  criminality  of  the  Catholics  is  that  in  Germany 
and  in  many  other  countries  where  both  Catholics  and  Protes- 
tants are  numerous  the  Catholics  are  not  so  affluent  as  the  Prot- 
estants. Inasmuch  as  the  poorer  classes  produce  more  criminals 
than  the  wealthier  classes,  this  fact  may  account  entirely  for  the 
high  criminality  of  the  Catholics.  However,  this  is  not  neces- 
sarily the  case,  and  the  religious  factor  may  have  considerable 
influence.  It  may  be  that  Catholicism  does  not  encourage  the 
material  well-being  of  its  followers  as  much  as  Protestantism 
and  certain  other  religions.  Or  it  may  be  that  the  Catholic 
religion  appeals  more  strongly  to  the  poor  and  the  ignorant,  and 
then  reacts  upon  them  so  as  to  increase  their  poverty  and 
ignorance.  Certainly  the  subservient  attitude  required  by  the 
Catholic  Church  of  its  devotees  does  not  seem  calculated  to  en- 
courage them  to  acquire  knowledge. 

The  religious  traits  of  many  criminals  have  been  described.^ 
Among  them  is  to  be  found  nearly  every  type  of  religionist.  So 
far  as  it  is  possible  to  generalize  about  them,  it  is  probably  safe 
to  say  that  their  religion  is  more  emotional  and  more  supersti- 
tious than  the  average.  It  is  evident  that  it  has  failed  entirely 
or  in  large  part  from  restraining  their  criminal  propensities,  and 
may  in  some  cases  even  stimulate  those  propensities.    So  large  a 

^  See,  for  example,  the  writings  of  C.  Lombroso,  Crime,  Its  Causes  and 
Remedies,  pp.  138-144,  L'komme  criminel,  etc.;  E.  Laurent,  Le  Criminel, 
pp.  64-70;  C.  Perrier,  Les  Criminels;  and  many  other  criminologists. 


no  CRIMINOLOGY 

proportion  of  the  criminals  are  religious  that  it  is  the  most 
egregious  folly  to  regard  religion  as  a  panacea  for  crime,  as 
seems  to  be  the  belief  of  many  representatives  of  religion. 

The  above-mentioned  facts  suggest  conclusions  which  are 
highly  probable  on  other  grounds  as  well.  It  is  not  surprizing 
that  there  is  a  lower  percentage  of  criminality  among  those  who 
are  accounted  as  irreligious,  for  this  group  includes  a  larger 
percentage  than  the  religious  group  of  persons  who  think  for 
themselves  and  who,  whether  religious  or  irreligious,  do  not 
accept  the  authority  and  tutelage  of  any  religious  organization. 
This  fact  implies  a  high  standard  of  intelligence  and  education, 
which  is  not  usually  correlated  with  criminality.  This  is  not 
because  intelligence  and  education  are  in  themselves  neces- 
sarily preventives  of  crime,  but  because  they  are  likely  to  place 
an  individual  in  a  position  in  society  where  the  temptations 
towards  criminal  conduct  are  comparatively  small. 

For  similar  reasons  it  is  not  surprizing  that  the  religions  whose 
followers  are  ignorant  and  poor  display  a  high  percentage  of 
criminality.  Furthermore,  it  is  not  to  be  expected  that  religion 
in  itself  is  to  display  a  universal  and  uniform  tendency  towards 
discouraging  crime,  because  religions  differ  greatly  amongst 
themselves,  and  therefore  in  their  influence  upon  social  phenom- 
ena. In  order  to  understand  the  last  statement  it  will  be  neces- 
sary to  study  briefly  the  broader  aspects  of  religion,  and  to 
bring  to  light  its  indirect  and  remote  effects  upon  crime. 

The  religious  teachings  received  by  most  persons  during 
childhood  and  early  youth  usually  make  a  powerful  impression 
upon  the  emotional  nature.  This  impression  is  probably  due  in 
the  main  to  the  mysterious  and  mystical  features  of  religion, 
which  have  this  effect  through  physiological  and  pyschological 
processes  which  there  is  not  the  space  to  describe  here.  Espe- 
cially impressionable  is  the  youth  at  the  time  of  puberty,  for  at 
that  time  there  reach  maturity  the  sexual  organs  and  processes 
which  furnish  the  most  powerful  affective  stimulants  in  the 
human  organism.  If  the  individual  passes  through  the  psy- 
chological crisis  which  in  religious  experience  is  called  conver- 
sion, with  its  accompanying  phenomena  of  repentance  and  re- 
morse, the  impression  made  by  the  religious  teachings  becomes 
all  the  more  indelible  upon  the  mind  of  the  neophyte. 

The  significance  of  the  above  facts  for  our  purpose  is  clear. 


THE   INFLUENCE   OF  CIVILIZATION  UPON  CRIME  III 

Every  religion  contains  more  or  less  extensive  accretions  in  the 
way  of  moral  commands  and  guidance  for  its  adherents.  These 
moral  teachings  receive  a  powerful  dynamic  reenforcement  from 
the  emotional  factors  in  religion.  Furthermore,  these  teachings 
probably  receive  some  reenforcement  also  from  the  minatory 
features  of  religion,  namely,  from  the  intimidation  attempted  by 
nearly  every  religion  by  means  of  threats  of  supernatural  pun- 
ishments.^ Consequently,  it  becomes  a  question  of  considerable 
moment  as  to  what  are  the  moral  teachings  of  a  religion.  It 
goes  without  saying  that  the  religions  differ  greatly  amongst 
themselves  in  this  matter,  so  that  it  is  difficult  if  not  impossible 
to  generalize  with  respect  to  them.  Some  of  these  teachings  are 
genuinely  moral  in  the  sense  that  they  promote  harmony  in 
social  relations  and  the  welfare  of  mankind.  Some  of  these 
teachings  are  highly  immoral  in  the  sense  that  they  instigate 
strife  and  conflict,  and  cause  untold  human  suffering  and  un- 
happiness  by  enjoining  upon  the  religious  devotees  militant 
propagandism,  asceticism,  penitential  pain,  minatory  terror  of 
supernatural  penalties,  etc.^ 

1  The  minatory  influence  of  religion  has  been  questioned.  It  is  doubt- 
less not  so  great  as  is  popularly  believed,  owing  to  human  heedlessness  as 
to  the  ultimate  consequences  of  their  acts.  The  same  trait  accounts  for 
the  limited  intimidatory  influence  of  legal  penalties.  But  it  is,  I  believe,  a 
mistake  to  deny  it  practically  all  eflkacy,  as  is  done  by  some  writers,  as, 
for  example,  J.  L.  de  I>anessan,  who  says:  "En  ce  qui  concerne  la  crainte 
de  I'enfer,  il  est  facile  de  s'assurer  qu'elle  n'a  jamais  joue  un  r61e  moralisateur 
bien  considerable."    {La  ItUte  contre  le  crime,  Paris,  1910,  p.  97.) 

^  Lombroso  suggests  the  interesting  theory  that  new  religions  have  a 
greater  moral  influence  than  old  religions,  because  they  have  not  yet  fallen 
into  ritualism,  symbolism,  and  other  kinds  of  formalism.  (See  his  Crime, 
Its  Causes  and  Remedies.)  "One  thing  seems  clear  to  me,  namely,  that  the 
younger  religions  are,  the  greater  is  their  moral  power,  because  the  letter 
has  not  yet  encroached  upon  the  spirit,  because  the  enthusiasm  for  new 
ideas  occupies  the  mind  and  draws  it  away  from  crime,  and,  finally,  be- 
cause, whatever  be  its  origin,  the  organism  is  then  more  free  from  symbols 
and  formulas  that  clog  its  activity."  (P.  141.)  "On  the  whole,  the  contra- 
diction of  the  influence  of  religion,  now  great  and  now  totally  lacking,  dis- 
appears when  one  grasps  the  significance  of  the  facts.  Religion  is  useful 
when  it  is  based  absolutely  upon  morals  and  abandons  all  rites  and  formu- 
laries. This  is  a  condition  that  can  be  realized  only  in  the  new  religions; 
because  while  all  in  the  beginning  are  moral,  afterwards,  little  by  little, 
they  become  crystallized,  and  ritual  practices  submerge  the  moral  principle, 
which  is  less  easily  conceived  and  retained  by  the  crowd.  All  members  of 
new  sects  are  men  of  one  idea,  which  protects  them,  like  a  vaccine,  against 


112  CRIMINOLOGY 

We  have  not  the  space  to  appraize  the  important  religions  of 
the  world  with  respect  to  their  moral  influence.  ^  But  there  are  a 
number  of  general  considerations  which  should  be  noted.  There 
is  much  talk  now-a-days  of  "socializing"  religion.  By  this  it  is 
meant  that  a  large  number  of  moral  teachings  which  are  or  are 
supposed  to  be  of  social  value  are  to  be  incorporated  in  religion. 
Thus  will  arise,  it  is  alleged,  what  is  called  "social"  religion.^ 
Some,  indeed,  insist  that  religion  should  become  entirely  social, 
thus  eliminating  the  supernatural  element. 

Now  it  is  evident,  on  the  one  hand,  that  these  social  teachings 
are  not  religious  in  their  origin,  but  arise  out  of  humanitarian- 
ism.^  It  is  obvious,  on  the  other  hand,  that  there  can  be  no 
religion  in  the  strict  sense  of  the  term  without  a  supernatural 
element.  Consequently,  there  can  be  no  purely  "social"  reli- 
gion, and  the  phrase  "social  religion"  is  a  misnomer  for  one 

ignoble  passions."  (P.  142.)  His  conclusion  with  regard  to  the  influence  of 
religion  upon  crime  is  as  follows:  "The  only  religions,  then,  which  can  pre- 
vent crime  are  those  that  are  fanatical,  passionately  moral,  or  just  arising. 
The  others  are  no  more  efifective  than  atheism,  and  perhaps  less  so."  (P.  144.) 

There  is  doubtless  a  measure  of  truth  in  this  theory.  But  Lombroso  is, 
I  believe,  mistaken  in  assuming  that  all  new  religions  are  necessarily  moral 
in  their  influence.  As  I  have  indicated  above,  it  depends  upon  whether  or 
not  their  teachings  are  moral  from  the  outset  in  the  sense  that  they  are 
social  in  their  influence.  Many  religions  have  been  highly  immoral  from 
their  inception,  because  of  the  anti-social  character  of  their  teachings. 
Furthermore,  it  is  impossible  for  religion  to  become  solely  a  sj'stem  of  morals, 
as  Lombroso  suggests,  for  then  would  be  eliminated  the  supernatural  ele- 
ment which  is  essential  to  every  religion.  Religion  would  then  become 
charity,  philanthropy,  altruism,  humanitarianism,  etc.,  but  would  no  longer 
be  religion.  Lombroso  himself  seems  to  recognize  this  when  he  says  with 
regard  to  charitable  activities:  "Here,  then,  it  is  not  religion  in  general, 
that  deserves  the  credit,  but  certain  religions  only,  or,  better  still,  the  ideal 
tendency  of  certain  progressive  races.  However,  we  must  say  of  the  opera- 
tion of  religion,  as  we  have  said  of  that  of  charity,  that  it  is  always  indi- 
vidual, limited,  and  less  efi"ective  than  the  economic  influence,  which  alone 
is  universally  felt  by  the  masses."  (P.  300.) 

1 A  survey  of  this  sort  has  been  made  by  J.  L.  de  Lanessan,  La  morale  dcs 
religions,  Paris,  1905. 

2  See,  for  example,  E.  A.  Ross,  Social  Control,  New  York,  1901,  Chap.  XVI 
entitled  "  Social  Religion." 

'  I  have  described  the  nature  of  humanitarianism  elsewhere.  See  my 
Poverty  and  Social  Progress,  New  York,  1916,  Chap.  XVH  entitled  "The 
Modern  Humanitarian  Movement."  Also  see  my  article  entitled  The  Rise 
of  Modern  Humanitarianism,  in  the  Am.  Journal  of  Sociology,  November, 
1915- 


THE   INFLUENCE   OF   CIVILIZATION   UPON   CRIME  II3 

phase  of  humanitarianism.  This  does  not  mean  that  it  is  not 
possible  for  a  religion  to  carry  along  with  it  at  least  a  modicum 
of  social  teachings,  and  the  dynamic  element  in  religion  which 
arises  out  of  its  emotional  nature  may  reenforce  those  teachings, 
and  thus  give  them  greater  power.  But  the  question  still  re- 
mains as  to  the  influence  of  the  supernatural  content  of  religion. 

It  will  always  be  impossible  for  mankind  to  know  everything, 
or,  indeed,  to  know  anything  absolutely.  Beyond  the  bounds 
of  human  knowledge  will  always  remain  the  boundless  reach  of 
the  unknown  and  the  unknowable,  furnishing  the  opportunity 
for  speculative  metaphysics  and  religion.  So  long  as  the  meta- 
physician and  the  religionist  do  not  invade  with  their  specula- 
tions the  field  of  what  has  become  known  through  the  only 
source  of  knowledge,  namely,  science,  they  are  not  likely  to  do 
any  harm.  The  metaphysician  is  usually  well  enough  ac- 
quainted with  science  not  to  commit  this  mistake.  But  the 
representatives  and  exponents  of  religion  are  constantly  falling 
into  this  egregious  error.  By  so  doing  they  place  grave  obstacles 
in  the  form  of  superstitious  ideas  and  beliefs  in  the  way  of  the 
spread  and  influence  of  scientific  knowledge.  The  adherents  of 
the  religious  cults  are  induced  to  accept  the  hypothetical  re- 
ligious explanations  for  the  proven  scientific  explanations  of 
natural  phenomena,  and  thus  they  and  through  them  society  at 
large  are  led  astray  in  the  conduct  of  Hfe.  Consequently, 
religion  and  science  are  irreconcilable  not  only  theoretically, 
because  they  are  diametrically  opposed  in  method  (the  specula- 
tive theological  as  opposed  to  the  inductive  scientific  method), 
and  deal  with  entirely  different  subject-matter  (the  known  and 
knowable  and  the  unknown  and  unknowable),  but  also  prac- 
tically, because  religion  is,  or,  at  any  rate,  its  representatives 
are  continually  meddling  with  the  results  of  science  by  miscon- 
struing and  misrepresenting  them  and  by  opposing  their  ac- 
ceptance. 

This  is  the  most  important  and  most  far-reaching  considera- 
tion with  respect  to  the  influence  of  religion.  In  the  long  run  it  is 
doubtless  of  much  greater  importance  than  the  immediate 
effect  of  religion  upon  crime,  or  the  moral  influence  of  religion 
upon  the  population  at  large.  This  is  true  because  religion  will 
probably  always  continue  to  oppose  science,  and  thus  to  impede 
the  progress  of  civilization,  for  civilization  can  be  constructed 


114  CRIMINOLOGY 

only  upon  the  basis  of  knowledge  such  as  can  be  acquired  through 
science  alone.  It  may,  indeed,  be  said  that  civilization  is  in  a 
large  measure  correlated  with  irreligion  in  the  sense  that  civiliza- 
tion can  grow  and  progress  only  as  religion  decreases  and  loses  its 
influence.^ 

Innumerable  illustrations  can  be  given  of  the  ways  in  which 
religion  opposes  the  spread  of  scientific  knowledge,  obfuscates  the 
truth,  and  thus  impedes  the  progress  of  civilization.  The  pray- 
ers for  rain  are  still  read  in  the  Catholic  churches  and  special 
prayer  meetings  are  still  held  in  many  Protestant  churches  in  this 
country  at  times  of  drought,  despite  the  fact  that  meteorological 
science  has  explained  for  us  the  forces  which  control  the  pre- 
cipitation of  rain.  The  dogma  of  the  forgiveness  of  sins  still 
gives  currency  to  the  notion  that  the  effects  of  an  act  can  be 
wiped  out  by  repentance  and  remorse  alone,  or  by  the  absolution 
which  follows  penitential  acts,  despite  the  fact  that  the  biological 
and  psychological  sciences  have  taught  us  that  the  effects  of  any 
act,  whether  sinful  or  otherwise,  upon  the  organism  and  per- 
sonality are  indelible.^   The  great  war  in  progress  in  Europe  and, 

^  Leuba  has  made  an  investigation  which  is  of  great  significance  in  this 
connection.  By  means  of  a  questionnaire  he  ascertained  the  beliefs  with 
respect  to  religion  of  one  thousand  American  scientists.  He  found  that 
only  41.6  per  cent  of  these  scientists  believed  in  a  personal  god.  After  di- 
viding the  thousand  into  two  groups  of  six  hundred  less  eminent  scientists 
and  four  hundred  more  eminent  scientists,  he  found  that  48.2  per  cent  of 
the  less  eminent  believed  in  a  personal  god,  while  only  3 1.7  per  cent  of  the 
more  eminent  believed  in  a  personal  god. 

In  similar  fashion  he  ascertained  the  beliefs  of  these  thousand  men  of 
science  with  respect  to  their  belief  in  personal  immortality.  He  found  that 
50.5  per  cent  of  the  total  number  believed  in  personal  immortality.  Of  the 
six  hundred  less  eminent  59.6  per  cent  believed  in  personal  immortality, 
while  of  the  four  hundred  more  eminent  only  37  per  cent  held  this  belief. 

Leuba  also  made  a  similar  investi,'^ation  of  the  religious  beliefs  of  several 
college  classes  which  seemed  to  indicate  that  the  religious  beliefs  of  these 
students  decreased  with  the  degree  of  advancement  of  their  studies.  (J.  H, 
Leuba,  The  Belief  in  Cod  and  Immortality,  Boston,  1916.) 

This  investigation  furnishes  evidence  that  religion  declines  with  increase 
of  knowledge  and  ability,  both  of  which  are  essential  factors  for  the  progress 
of  civilization. 

2  The  Christian  dogma  cf  the  forgiveness  of  sins  is  stated  at  many  points 
in  the  New  Testament.  For  example,  in  his  epistle  to  the  Ephesians,  Paul 
states  the  doctrine  of  the  forgiveness  of  sins  through  the  vicarious  sacrifice 
of  Jesus  for  the  persons  who  accept  him  as  their  savior.    "In  whom  we  have 


THE   INFLUENCE   OF   CIVILIZATION    UPON   CRIME  II5 

elsewhere  at  the  time  of  the  present  writing  has  furnished 
abundant  evidence  of  the  belief  which  is  more  or  less  prevalent 
in  each  country  that  the  divine  sanction  somehow  or  other  rests 
upon  that  country  in  preference  to  other  countries,  thus  in- 
tensifying the  bitter  feeling  towards  hostile  countries,  in  spite 
of  the  fact  that  according  to  the  monotheistic  doctrine  itself  a 
unitary  deity  could  not  very  well  take  sides  with  every  bellig- 
erent. 

Science  and  Crime 

The  preceding  discussion  of  religion  has  incidentally  revealed 
the  supreme  importance  of  the  influence  of  science.  We  should, 
in  the  first  place,  speak  of  the  immediate  effects  of  science  upon 
crime.  The  development  of  technical  scientific  methods  en- 
courages crime  somewhat  by  furnishing  many  professional 
criminals  more  effective  methods  of  committing  certain  kinds 
of  crimes.  But  science  has  also  furnished  the  police  and  the 
courts  more  effective  methods  for  the  detection  and  the  appre- 
hension of  criminals.  So  that  in  all  probability  scientific  methods 
have  been  more  effective  for  the  suppression  and  prevention  of 
crime  than  they  have  been  effective  for  rendering  crime  more 
facile. 

But,  as  is  amply  demonstrated  in  the  course  of  this  book, 
scientific  methods  are  of  the  utmost  value  also  for  ascertaining 
the  causes  of  crime  and  the  nature  of  the  criminal.  With  the 
use  of  these  methods  much  has  already  been  learned,  and  much 
more  will  doubtless  be  learned  in  the  future.  Only  on  the  basis 
of  this  knowledge  can  an  effective  program  for  the  treatment  of 
the  criminal  and  the  prevention  of  crime  be  devized.  So  that 
science  is  of  decisive  importance  in  determining  how  society 
shall  deal  with  crime  in  the  future. 

.  It  is,  however,  sometimes  alleged  that  modern  science  has  a 
''materialistic"  influence  which  gives  rise  to  a  good  deal  of 
immorality.  This  criticism  of  modern  science  doubtless  orig- 
inates in  the  main  from  the  religious  opposition  to  science,  but 

redemption  through  his  blood,  the  forgiveness  of  sins,  according  to  the 
riches  of  his  grace."    (Ephcsians,  I,  7.) 

While  this  unscientific  and  anti-social  religious  doctrine  should  be  repu- 
diated, offenders  who  display  regret  and  remorse  for  the  injury  they  have 
done  to  others  should  be  treated  with  magnanimity  and  mercy  in  order  to 
encourage  them  to  do  better  in  the  future. 


1 16  CRIMINOLOGY 

a  little  of  it  may  have  a  sentimental  origin  apart  from  religion. 
It  is  claimed  that  many  of  those  who  become  imbued  with  the 
ideas  of  modern  science  discard  all  of  their  previous  ethical 
ideas,  and  are  no  longer  governed  by  a  sense  of  responsibility 
in  their  relations  with  their  fellows.  It  is  doubtless  true  that 
this  has  happened  to  a  few  persons,  but  probably  not  to  many. 
In  most  of  these  cases  the  individual  has  been  a  young  person 
who  has  had  a  conventional  religious  training.  In  many  of  these 
cases  the  individual  has  been  of  an  unstable  character.  It  is 
not  surprizing  that  when  the  clash  between  the  scientific  ideas 
and  the  traditional  religious  beliefs  has  come  in  the  minds  of 
these  persons,  it  has  resulted  in  a  complete  overthrowal  of  the 
old  code  of  conduct  without  a  substitution  for  it  of  a  new  code. 
But  it  is  obvious  that  this  is  not  a  necessary  result  of  scientific 
ideas.  On  the  contrary,  a  thoroughgoing  scientific  training 
makes  possible  an  understanding  of  the  physical  conditions 
under  which  mankind  lives,  of  human  nature,  and  of  the  social 
relations  in  which  men  live.  This  knowledge  furnishes  the  best 
possible  basis  for  a  code  of  conduct  which  leads  to  the  most 
satisfactory  life  both  for  the  individual  and  for  his  fellows. 
Consequently,  it  is  utterly  false  to  assert  that  science  neces- 
sarily leads  to  immoral  conduct,  and  that  religion  is  absolutely 
necessary  as  a  basis  for  a  successful  code  of  conduct. 

We  now  come  to  the  most  indirect  influence  of  science  upon 
crime,  but  which  is,  nevertheless,  of  the  most  far-reaching  im- 
portance. It  is  obvious  that  science  is  essential  to  the  progress 
of  civilization.  This  progress  consists  in  the  main  in  the  ac- 
quiring control  as  far  as  possible  by  man  of  the  conditions  of 
his  existence,  thus  enabhng  him  to  live  the  happiest  and  most 
normal  life  possible.^  The  highest  degree  of  human  control 
which  is  possible  can  come  only  through  an  understanding  of 
the  natural  forces  which  determine  these  conditions  of  human 
existence,  and  this  knowledge  can  be  obtained  only  by  science. 

Art  and  Crime 

Criminal  persons  and  actions  play  a  considerable  part  in 
works  of  art,  and  art  has  a  slight  influence  upon  crime.    The 

1  For  a  theory  of  social  progress,  see  my  Poverty  and  Social  Progress,  New 
York,  1916,  Chap.  XXX,  entitled  "  Social  Progress  and  the  Coming  of  the 
Nonnal  Life." 


THE  INFLUENCE  OF  CIVILIZATION   UPON  CRIME  II7 

crimes  and  criminals  usually  depicted  in  art  are  of  the  most 
exaggerated  types.  For  example,  in  literature  the  criminal  by 
passion  is  frequently  represented,  notwithstanding  the  fact 
that  this  type  is  comparatively  infrequent  in  real  life.^  Detective 
stories  almost  invariably  describe  unusual  crimes  and  criminals 
and  unusual  police  oflScers  and  police  methods  of  detection. 
In  similar  fashion  the  vices  are  frequently  described  in  a  highly 
colored  fashion,  the  sordid  details  being  carefully  omitted. 

It  is  easy  to  explain  these  features  of  the  artistic  and  especially 
the  literary  representation  of  crime  and  vice.  The  exaggerated 
types  of  crime  and  vice  are  more  dramatic  than  the  common 
types,  and  crime  and  vice  in  general  are  more  dramatic  than 
virtue.^  Consequently,  it  is  not  surprizing  that  the  artist  so 
frequently  takes  these  exaggerated  types  as  his  subjects,  and 
that  the  public  finds  them  of  absorbing  interest.  But  this  sort 
of  an  artistic  treatment  of  crime  and  vice  is  sure  to  produce  some 
evil  results. 

In  the  first  place,  by  depicting  almost  exclusively  the  exag- 
gerated types  of  crime  and  vice  the  public  is  given  a  false  im- 
pression as  to  the  true  nature  of  the  great  majority  of  criminal 
and  vicious  acts,  and  as  to  the  traits  of  most  of  the  criminal  and 
vicious  persons.  From  literature,  the  drama,  and  other  forms 
of  art,  almost  nothing  can  be  learned  about  the  feebleminded 
and  psychopathic  types  of  criminals,  and  comparatively  little 
about  the  occasional  and  professional  criminals.  Furthermore, 
what  little  can  be  learned  is  in  the  main  inaccurate  and  mis- 
leading, since  most  of  the  artists  have  had  little  opportunity  for 
firsthand  observation,  no  scientific  training,  and  have  an  exu- 
berant and  undisciplined  imagination  which  leads  them  far 
astray  in  their  ignorance.  Since  it  is  important  that  the  public 
should  have  a  correct  understanding  of  the  problem  of  crime, 
the  influence  of  art  in  spreading  misinformation  is  harmful. 

In  the  second  place,  the  glorification  of  crime  and  the  criminal 

1  "Dans  I'art,  au  contraire,  le  crime  n'est  repr6sent6  que  par  ses  incarna- 
tions les  plus  typiques  et  les  moins  ordinaires.  II  est  rare  qu'un  tempera- 
ment tr^s  original  ou  que  les  exigences  du  public  4  un  moment  donn6  pous- 
sent  I'artiste  k  6viter  les  sentiers  battus,  I'etemelle  repetition  du  crime  et 
du  criminel  par  amour  —  les  moins  fr^quemment  observables  d'ailleurs, 
dans  la  vie  reelle."  (E.  Ferri,  Les  criminels  dans  I'ari  et  la  litUrature,  Paris, 
3897,  p.  2.) 
'^  J'  CJ.  M.  Guyau,  Uart  au  point  de  vue  sociologique,  Paris,  1897,  p.  381. 


Il8  CRIMINOLOGY 

by  tRe  artist  gratifies  the  vanity  of  criminals,  and  excites  a  de- 
sire for  emulation  on  the  part  of  would-be  criminals.  Speaking 
more  broadly,  such  art  probably  has  a  certain  amount  of  suggest- 
ive power,  by  means  of  which  it  influences  some  of  the  weaker, 
more  suggestible  individuals  to  imitate  the  acts  of  the  criminal 
and  vicious  characters  depicted  in  these  works  of  art.  The 
exact  extent  of  this  influence  it  is  impossible  to  measure. 

On  the  other  hand,  strange  as  it  may  seem,  such  art  sometimes 
has  a  cathartic  influence  which  has  a  slight  social  value.  Ever 
since  Aristotle  propounded  his  theory  of  catharsis  (%a^a/)o-t9), 
it  has  been  observed  that  works  of  art  sometimes  have  a  pur- 
gative and  purifying  effect  in  cleansing,  so  to  speak,  the  individ- 
ual of  passions  which  distress  him.  Aristotle  was,  I  believe,  re- 
ferring in  particular  to  the  ennobling  effect  of  tragic  works  of 
art.  But  we  may  apply  the  same  theory  in  a  modified  form  to 
the  kind  of  art  described  above.  While  a  blood-curdling  de- 
tective story  may  lead  one  boy  into  a  life  of  crime,  it  may  satisfy 
vicariously,  so  to  speak,  the  impulses  of  another  boy  in  the  same 
direction,  and  thus  save  him  from  the  same  kind  of  career,  or, 
at  any  rate,  relieve  him  of  the  distress  caused  by  these  impulses. 
While  a  story  of  gambling  may  lead  one  reader  to  indulge  in  this 
vice,  it  may  afford  another  reader  sufficient  relief  from  the  same 
impulses  to  keep  him  from  going  any  further  in  the  same  direc- 
tion. This  effect  of  art  may  be  likened  to  a  process  of  vaccina- 
tion, inasmuch  as  the  individual  is  saved  from  the  worst  forms 
of  crime  and  vice  by  experiencing  them  in  a  milder  form  in 
works  of  art. 

It  is,  of  course,  true  that  a  few  artists  who  have  been  accurate 
observers,  and  have  had  opportunities  to  learn,  have  given  more 
or  less  truthful  pictures  of  various  aspects  of  crime  and  vice.^ 
Furthermore,  there  is  a  large  amount  of  artistic  work  whose  in- 
fluence is  truly  moral  in  the  sense  that  it  inspires  feelings  and 
impulses  which  are  social  in  their  nature.  But  it  is  doubtful 
if  art  has  much  influence  either  for  or  against  crime  and  vice. 
Art  is  in  the  main  a  reflection  of  conditions  which  have  been 
created  by  other  forces.  It  furnishes  a  picture  of  those  conditions 
to  a  certain  extent,  but  is  not  in  itself  a  strong  dynamic  force. 

*  As,  for  example,  Dostoievsky,  who  had  a  keen  insight  into  human  na- 
ture, and  had  ample  opportunities  to  observe  criminals  during  several  years 
of  imprisonment. 


THE   INFLUENCE   OF   CIVILIZATION   UPON   CRIME  II9 

The  influence  of  art  upon  crime  and  vice  raises  the  question 
of  the  regulation  of  art.  Such  regulation  exists  to  a  considerable 
extent  in  many  parts  of  the  civilized  world,  as,  for  example,  in 
this  country.  Legal  regulation  of  art  almost  always  does  more 
harm  than  good.  Much  preferable  to  legal  regulation  is  the 
regulative  influence  of  public  opinion.  And  the  character  of 
this  opinion  is  determined  mainly  by  the  conditions  under 
which  the  public  lives.  Anti-social  art  and  the  demand  for  it 
are  created  mainly  by  evil  living  conditions.  When  human 
beings  are  able  to  lead  a  normal  life  in  which  they  can  express 
their  natures  spontaneously  with  a  minimum  degree  of  restric- 
tion, anti-social  art  and  the  demand  for  it  will  disappear  almost 
entirely. 

This  fact  is  illustrated  in  many  ways.  Much  of  the  anti- 
social art  is  due  to  the  romantic  impulse  for  adventure  which 
seems  to  be  deeply  rooted  in  human  nature,  and  which  does  not 
usually  have  an  opportunity  for  expression  in  the  prosaic  life  of 
the  great  majority  of  persons.  If  human  life  could  be  so  ordered 
as  to  furnish  ample  scope  for  the  satisfaction  of  this  impulse 
in  one  way  or  another,  this  kind  of  art  would  at  once  disappear. 
Most  of  the  exploitation  of  sex  on  the  stage,  in  literature,  and 
in  other  forms  of  art,  is  due  to  the  fact  that  under  present  con- 
ditions many  individuals  are  unable  to  express  their  sexual 
natures  satisfactorily.  If  society  could  be  so  organized  that 
practically  every  individual  could  live  a  normal  sexual  life,  most 
of  this  artistic  exploitation  of  sex  would  at  once  disappear. 

So  that  art  may  be  regarded  as  a  sort  of  running  commentary 
upon  existing  conditions.  And  to  expend  much  time  and  effort 
in  endeavoring  to  influence  art  is  wasteful  and  foolish,  because 
much  more  can  be  accomphshed  by  attacking  the  underlying 
causes  of  these  conditions. 

The  Press  and  Crime 

Education  is  a  powerful  force  in  civilization  which  I  shall 
discuss  in  a  later  chapter  on  juvenile  criminality.  In  passing, 
it  may  be  well  to  touch  briefly  upon  the  influence  of  the  press. 
In  our  modern  civilization  a  vast  number  of  individuals,  perhaps 
the  majority  of  the  population,  read  the  daily  newspapers  and 
other  periodicals  appearing  at  longer  intervals.  These  journals 
transmit  to  their  readers  a  large  amount  of  information  (and 


I20  CRIMINOLOGY 

sometimes  of  misinformation),  and  thus  constitute  an  important 
educational  agency.  But  they  may  at  the  same  time  stimulate 
a  certain  amount  of  crime  by  the  descriptions  which  they  furnish 
of  criminal  acts.  This  is  especially  true  of  the  sensational  press, 
or  so-called  yellow  journals,  which  give  lurid  accounts  of  crimes, 
suicides,  etc.  These  accounts  doubtless  have  a  suggestive  influ- 
ence, and  have  led  at  least  a  few  suggestible  individuals  to 
imitate  these  acts. 

Some  writers  believe  that  the  suggestive  influence  of  the  sen- 
sational press  is  very  great  and  has  caused  many  crimes.-^  It 
is  obviously  impossible  to  measure  this  influence.  Occasionally 
a  criminal  act  is  committed  in  which  this  influence  comes  to 
light,  either  through  the  testimony  of  the  perpetrator  of  the 
act  or  in  some  other  way.  Furthermore,  the  science  of  psy- 
chology has  furnished  ample  evidence  that  human  beings  are 
more  or  less  suggestible,  which  justifies  us  in  assuming  that 
sensational  accounts  of  criminal  acts  will  lead  to  a  small  amount 
of  crime.  But  there  are  two  reasons  for  believing  that  the 
above-mentioned  writers  have  exaggerated  this  influence.  In 
the  first  place,  this  influence  is  likely  to  be  sufficiently  strong 
only  over  very  weak,  suggestible  individuals  to  lead  to  criminal 
acts.  In  the  second  place,  these  weak  individuals  are  very  likely 
to  commit  these  acts  anyway,  even  if  they  do  not  fall  under  the 
suggestive  influence  of  the  sensational  press,  for  there  are  other 
suggestive  influences  at  work  which  are  almost  certain  to  affect 
them. 

As  in  the  case  of  art,  legal  regulation  of  the  press  is  almost 
certain  in  most  cases  to  do  more  harm  than  good.  The  free- 
dom of  the  press  is  one  of  the  essential  features  of  civilization. 
It  goes  without  saying  that  the  press,  like  individuals,  should  be 
subject  to  the  laws  against  libel,  fraudulent  statements,  and 
the  incitement  to  crime,  the  justification  for  which  will  be  dis- 
cussed in  Chapter  XXVIII.  Furthermore,  it  is  permissible  to 
restrain  the  press  from  publishing  information  of  military  value 
in  time  of  war.    But  with  these  few  exceptions,  the  only  sort  of 

^  As,  for  example,  Frances  Fenton,  The  Influence  of  Newspaper  Presenta- 
tions tipon  the  Growth  of  Crime  and  other  Anti-Social  Activity,  Chicago,  igii; 
E.  B.  Phelps,  Neurotic  Books  and  Newspapers  as  Factors  in  the  Mortality  of 
Suicide  and  Crime,  in  the  Bui.  of  the  Am.  Acad,  of  Medicine,  Vol.  XII,  No.  5, 
October,  191 1. 


THE  INFLUENCE   OF   CIVILIZATION   UPON   CRIME  121 

regulation  of  the  press  as  of  art  which  can  be  tolerated  is  regu- 
lation by  public  opinion.^ 

The  Advance  of  Civilization  and  the  Increase 
OF  Crime 

In  the  two  preceding  chapters  and  the  present  one  I  have 
discussed  the  influence  upon  crime  of  several  of  the  most  im- 
portant factors  in  civilization,  namely,  the  economic  factors, 
the  political  factors,  religion,  science,  art,  and  the  press.  Other 
aspects  of  civilization  are  dealt  with  elsewhere  in  this  book. 
I  shall  now  discuss  briefly  the  influence  of  civilization  in  general 
upon  the  extent  and  character  of  crime. 

It  is  frequently  asserted  that  crime  has  increased  greatly  in 
modern  times,  and  it  is  therefore  concluded  by  some  persons 
that  modern  civilization  has  had  a  harmful  effect.  There  are 
many  difficulties  in  the  way  of  measuring  the  extent  of  crime. 
But  so  far  as  criminal  statistics  are  available,  they  seem  to 
indicate  an  increase  in  the  extent  of  crime.  However,  this  does 
not  necessarily  mean  that  the  acts  formerly  stigmatized  by 

^"Le  remMe  ne  consiste  pas  dans  un  balllon  k  la  presse  —  qui  reflete 
et  ne  cree  pas  les  go^ts  du  public  et  qui  du  reste  compense  largement  les 
inconscients  dommages  qu'elle  peut  causer  par  les  immenses  avantages  de 
la  libre  discussion;  le  remede  est  en  nous;  il  est  dans  la  reaction  de  toute 
notre  energie  centre  cette  apotheose  du  mal  qui  va  se  r6pandant  partout; 
il  est  dans  une  ceuvre  d'education  ayant  pour  but  de  former  des  consciences 
plus  equilibrees  et  plus  saines,  capables  de  trouver  leur  satisfaction  dans 
le  rfecit  des  bonnes  oeuvres,  plutdt  que  dans  la  description  d'actes  atroces  et 
laches;  il  est  dans  notre  efifort  pour  nous  elever  k  la  hauteur  de  ce  que  notre 
cerveau  trouve  digne  d'inter^t  et  d'etude:  le  travail  obscur,  les  soufifrances 
muettes  de  cette  myriade  de  gens  ignores  qui  forment  la  multitude,  et  non 
les  actions  violentes  ou  perverses  de  cette  aristocratie  du  crime  qui  repre- 
sente  heureusement  une  monstrueuse  exception."  (S.  Sighele,  Litlerature 
et  criminaliU,  Paris,  1908,  pp.  218-219.) 

"  By  whom  art  shall  be  supervised  is  quite  another  question.  All  attempts 
to  lodge  the  supervision  of  it  in  any  man  or  board  have  done  more  harm 
than  good.  By  brutal  suppression  they  consecrate  the  established  order 
and  turn  artists  into  sycophants  or  revolutionists.  Art  should  be  the  hand- 
maiden, but  it  should  never  be  made  the  mere  bond-slave  and  scullion  of 
current  morality. 

"It  may  be  that  the  fate  of  the  artist's  work  should  be  decided  by  the 
ten  thousand  influential,  subject  to  an  appeal  to  the  million  uninfluential; 
the  latter  to  ban  without  ruth  or  scruple  whatever  gives  moral  offence.  In 
this  way  it  may  be  possible  to  make  art  amenable  to  society  without  making 
it  amenable  to  law."    (E.  A.  Ross,  Social  Control,  p.  274.) 


122  CRIMINOLOGY 

the  law  as  criminal  are  being  committed  more  frequently  now 
than  in  the  past.  Owing  to  the  great  increase  in  the  com- 
plexity of  human  life  caused  by  the  progress  of  civilization,  the 
category  of  criminal  acts  has  been  greatly  extended,  so  that  it  is 
possible  to  commit  a  much  greater  variety  of  crimes  now  than 
has  been  possible  in  the  past.  Furthermore,  owing  to  the  in- 
crease in  the  efficiency  of  government,  many  of  the  old  criminal 
laws  are  enforced  now  much  more  rigidly  than  in  the  past. 
The  apparent  increase  of  crime  in  modem  times  in  civilized 
countries  is  doubtless  due  in  large  part  to  these  two  factors, 
and  may  be  entirely  due  to  them.^ 

There  are,  however,  a  few  ways  in  which  the  progress  of  civiU- 

'  Hall  has  assembled  a  large  number  of  statistics  which,  he  believes, 
show  that  crime  has  increased  in  modem  times  in  civilized  countries.  (A.  C. 
Hall,  Crime  in  lis  Relations  to  Social  Progress,  New  York,  1902,  especially 
Chapters  12  to  14,  inclusive.) 

His  conclusion  with  respect  to  the  extent  of  crime  in  the  future  is  as  follows: 

"The  typical  crimes  of  the  most  highly  developed  and  successful  nations 
of  today  are  largely  misdemeanors,  caused  by  the  fine  legal  adjustments 
made  necessary  by  our  ever  more  and  more  complex  social  life.  \MI1  this 
process  continue  forever?  Will  more  delicate  adjustments  always  be  nec- 
essary and  result  in  an  ever-enlarging  list  of  social  prohibitions?  Probably. 
But  the  rate  of  increase  may  not  be  as  rapid  in  the  twentieth  century  as  it 
has  been  in  the  eighteenth  and  nineteenth.  There  was  so  much  to  be  ac- 
complished, and  so  much  has  now  been  done,  to  guard  the  rights  and  foster 
the  upward  growth  of  each  and  all  under  the  laws,  that  we  may  well  hope 
our  suffering  and  arduous  labors  will  make  the  creation  of  new  forms  of 
crime  less  necessary  for  our  great-grandchildren;  that  this  education  through 
social  discipline  may  gradually  become  less  difficult,  its  lessons  more  easily 
and  quickly  learned.  If  this  prove  true,  and  if  society  continues  to  be  suc- 
cessful in  diminishing  the  amount  of  criminality  under  old  laws,  then  the 
age  of  maximum  crime  will  have  been  passed,  and  from  thenceforth  society 
will  have  a  decreasing,  rather  than  an  increasing  total  of  delinquency." 
(Pp.  374-375.)  ^ 

Criminal  statistics  have  frequently  been  used  with  more  or  less  reckless- 
ness to  show  that  crime  is  increasing  or  decreasing.  As  an  example  of  such 
recklessness,  see  the  following  article:  C.  A.  Ellwood,  Has  Crime  Increased 
in  the  United  States  Since  18S0?  in  the  Jour.  Critn.  Law,  Vol.  I,  No.  3,  Sep- 
tember, 1910,  pp.  378-385.  In  this  article  it  is  concluded  that  serious  crime 
has  been  increasing  in  this  country.  A  less  aggravated  example  is  to  be 
found  in  the  following  article:  J.  Goebel,  Jr.,  The  Prevalence  of  Crime  in  the 
United  States  and  Its  Extent  Compared  with  That  in  the  Leading  European 
States,  in  the  Jour.  Crim.  Laiv,  Vol.  Ill,  No.  5,  January,  1913,  pp.  754-769. 

It  is  well  to  beware  of  misleading  attempts  to  measure  precisely  the  ex- 
tent of  crime. 


THE   INFLUENCE    OF   CIVILIZATION   UPON  CRIME  I23 

zation  may  have  increased  the  amount  of  crime.  Civilization 
has  doubtless  increased  the  complexity  of  human  life,  and  may 
thereby  have  increased  the  nervous  strain  upon  human  beings. 
The  available  statistics  seem  to  indicate  an  increase  of  insanity 
and  suicide  in  modem  times/  and  this  has  probably  resulted 
from  the  increase  in  nervous  strain.  In  similar  fashion,  the 
added  strain  upon  the  nervous  system  may  have  led  to  a  larger 
amount  of  crime. 

A  theory  which  has  been  supported  by  several  writers  is  that 
there  is  a  direct  correlation  between  economic  activities  and 
criminal  activities,  or,  as  it  is  sometimes  stated,  between  ma- 
terial prosperity  and  criminality.  The  principal  exponent  of 
this  theory  has  been  Poletti,^  who  used  French  statistics  of 
imports  and  exports  and  other  statistics  indicating  the  extent 
of  economic  activities.  But  his  own  calculations  seemed  to 
indicate  that  the  economic  activities  had  increased  far  more 
than  the  criminal  activities.  And  in  any  case,  it  is  evident,  as 
has  been  pointed  out  by  Ferri,^  that  it  is  impossible  to  measure 
accurately  the  extent  of  economic  activity,  just  as  it  is  impos- 
sible to  measure  accurately  the  extent  of  criminal  activity. 
For  this  and  for  other  reasons  Poletti's  theory  has  been  severely 
criticized  by  Ferri,  Garofalo,'*  Tarde,^  van  Kan,^  and  many 
other  criminologists. 

At  the  same  time  there  is  a  measure  of  truth  in  Poletti's  theory 
which  should  be  recognized.  It  emphasizes  the  fact  that  the 
increase  of  crime  should  be  compared  not  only  with  the  increase 
of  population,  but  also  with  the  increase  of  the  activities  of 
society  caused  by  the  progress  of  civilization.  It  is  not  sur- 
prizing that  an  increase  in  these  activities,  quite  apart  from  the 

'  Cf.  A.  Corre,  Crime  et  suicide,  Paris,  1891. 

^  Poletti,  //  sentimento  nella  scienza  del  dirilto  penale,  Udine,  1882. 

'  "The  mathematical  or  even  the  merely  precise  expression  of  a  compari- 
son between  crimin3.1  and  economic  activities  is  impossible  for  the  simple 
reason  that  if  we  could  approximately  fix  the  first  term  of  the  equation  by 
the  number  of  offenses  prosecuted  and  tried,  we  could  not,  as  to  the  second, 
in  view  of  the  infinite  variety  of  elements  which  compose  it,  give  even  an 
approximate  total  value."  (E.  Ferri,  Criminal  Sociology,  Boston,  1917, 
p.  184.) 

*  R.  Garofalo,  Criminology,  Boston,  1914,  pp.  166-176. 

'  G.  Tarde,  La  criminaliU  compar6e,  Paris,  1886,  pp.  73^. 

'  J.  van  Kan,  Les  causes  6conomiqites  de  la  crimifuUitS,  Paris,  1903,  pp.  199- 
202. 


124  CRIMINOLOGY 

increase  in  population,  should  stimulate  a  certain  amount  of 
crime,  as,  for  example,  the  increase  in  commercial  activities 
has  increased  the  opportunities  for  fraud.  But  Poletti  was  not 
justified  in  assuming  that  such  an  increase  in  crime  is  necessarily 
permanent,  for  if  civilization  succeeds  in  evolving  a  more  effi- 
cient social  organization,  the  extent  of  crime  may  eventually 
be  decreased  relatively  if  not  absolutely. 

A  similar  theory,  which  has  been  suggested  by  certain  writers, 
has  been  that  the  extension  of  personal  liberty  by  modern  civili- 
zation has  afforded  greater  opportunity  for  the  abuse  of  liberty, 
and  has  thus  led  to  an  increase  in  the  amount  of  crime.  This 
theory  is  sometimes  used  as  a  basis  for  criticisms  of  the  modern 
democratic  and  humanitarian  movement,  on  the  ground  that 
this  movement  has  increased  crime  by  weakening  social  control 
to  an  excessive  degree.  It  is  true  that  personal  liberty  has  been 
greatly  increased  in  some  respects  by  the  progress  of  civiliza- 
tion, as,  for  example,  by  the  lessening  of  the  power  of  kings 
and  other  autocratic  rulers,  by  the  increase  of  the  guarantees 
of  personal  liberty  by  democratic  and  constitutional  govern- 
ment, etc.  But,  on  the  other  hand,  many  new  restrictions  have 
arisen,  in  the  form  of  ordinances  in  cities  and  similar  legislation. 
So  that  it  is  hard  to  ascertain  whether  modern  civilization  has 
on  the  whole  increased  or  has  diminished  the  extent  of  personal 
liberty.  To  say  the  least,  it  is  doubtful  if  social  control  has  been 
seriously  weakened,  and  it  is  probable  that  its  character  has 
been  changed  so  as  to  make  it  more  effective  and  more  beneficial 
to  the  great  majority  of  society. 

The  progress  of  civilization  has  probably  changed  somewhat 
the  character  of  crime  from  the  violent  to  the  cunning  tj^e. 
At  any  rate,  whether  or  not  crimes  of  violence  have  decreased, 
crimes  of  cunning  are  doubtless  much  more  numerous  now  than 
crimes  of  violence. 

The  relation  of  crime  to  civilization  in  the  future  will  be 
discussed  in  the  final  chapter  of  this  book.  It  is  well,  however, 
at  this  point  to  call  attention  to  the  fact  that  the  recent  past 
has  been  a  period  of  rapid  change  and  progress.  It  may  indeed 
be  regarded  as  a  sort  of  transitional  period  between  an  old  and 
a  comparatively  new  social  system.  It  is,  therefore,  very  diffi- 
cult to  predict  from  recent  events  as  to  whether  crime  is  going 
to  increase  or  decrease. 


PART  III 
CRIMINAL  TRAITS  AND  TYPES 


CHAPTER  IX 
THE  ORGANIC  BASIS  OF  CRIMINALITY 

Anatomical  and  physiological  basis  of  criminality  —  The  theory  of  the 
born  criminal:  Lombroso  —  The  organic  basis  of  the  mental  factors  in 
criminality:  instinct;  feeling;  intelligence  —  Abnormalities  in  the  neu- 
ral basis  of  mind  —  The  organic  causes  of  amentia  —  The  organic 
causes  of  dementia,  the  neuroses,  and  abnormal  appetites  —  Race  and 
criminality. 

Human  nature  reveals  itself  in  the  first  instance  through  the 
forms  of  behavior.  But  behavior  is  determined  by  the  organic 
traits  of  the  individual,  and  the  mental  states  which  precede 
every  act.  So  that  in  order  to  understand  the  nature  of  any 
group  of  human  beings  it  is  necessary  to  study  these  organic 
traits  and  mental  states. 

Anatomical  and  Physiological  Basis  of  Criminality 

The  primary  factor  in  the  determination  of  behavior  is  the 
anatomical  structure.  It  is  obvious  that  an  animal  can  do  only 
what  its  action  system  enables  it  to  do.  A  bird  without  wings 
cannot  fly,  an  animal  without  legs  or  similar  locomotor  organs 
cannot  walk.  And  not  only  are  the  anatomical  structure  in 
general  and  the  gross  anatomical  features  of  importance,  but 
also  the  minute  anatomical  features,  most  of  which  are  internal, 
such  as  the  texture  and  microscopic  makeup  of  the  different 
parts  of  the  organism.  For  example,  the  texture  of  the  nervous 
system  is  one  of  the  principal  factors  in  the  determination  of 
the  mental  states.^  Peculiarities  of  the  texture  of  the  nervous 
system  doubtless  explain  criminal  conduct  in  many  cases. 

1  "  In  the  cerebral  cortex  lies  memory  with  its  wealth  of  stored  experiences, 
in  this  organ  love,  hate  and  fear  come  into  being;  here  arise  the  cool  delibera- 
tions of  the  man  of  science,  the  dreams  and  aspirations  of  the  poet,  the 
passion  of  the  religious  enthusiast,  and,  when  abnormalities  intervene,  the 
ravings  of  the  madman.  Contrary  to  ancient  belief,  the  spleen  does  not 
engender  temper,  nor  do  the  afifections  flow  from  the  heart.  These  and  all 
other  like  attributes  proceed  from  the  brain."    (G.  H.  Parker,  The  Sources 


128  CRIMINOLOGY 

In  similar  fashion  the  physiological  processes  have  a  powerful 
influence  upon  behavior.  The  processes  characteristic  of  the 
vascular,  the  respiratory,  the  digestive,  the  excretory,  and  the 
nervous  systems  condition  and  determine  in  the  last  analysis 
the  mental  states  and  processes.  Derangements  of  these  physio- 
logical processes  are  very  likely  to  cause  corresponding  dis- 
turbances in  the  mental  processes  which  in  some  cases  give  rise 
to  criminal  conduct. 

These  organic  traits  and  processes  are,  therefore,  of  funda- 
mental importance  in  the  causation  of  criminality.  There  is  not 
the  space  here  to  review  in  detail  the  extensive  studies  which 
have  been  made,  especially  by  the  Italian  criminologists,  of  the 
anatomical  and  physiological  traits  of  the  criminal.  ^  In  the 
main  these  have  been  studies  of  external  traits  which  are  not 
the  direct  causes  of  conduct,  while  the  mental  traits  are  direct 
causes.  However,  the  study  of  these  external  traits  is  important, 
and  should  be  correlated  with  the  study  of  the  internal  traits. 
This  work  has  been  misunderstood  by  many  persons  who  have 
imagined  that  the  criminal  conduct  was  caused  directly  by  these 
external  traits,  and  did  not  realize  that  these  traits  are  merely 
the  physical  stigmata  of  certain  types  of  criminals. 

The  organic  factors  for  criminality  have  been  given  the  most 
weight  by  the  criminologists  who  have  believed  that  they  have 
been  able  to  distinguish  a  congenital  type  of  criminal  predestined 
from  birth  by  his  anatomical  and  physiological  traits  to  become 
a  criminal.  This  theory  has  received  the  most  complete  exposi- 
tion in  Lombroso's  famous  theory  of  the  "born  criminal."  I 
shall,  therefore,  summarize  and  criticize  briefly  Lombroso's 
theory. 

The  Theory  of  the  Born  Criminal 

Lombroso's  conception  of  the  born  criminal  grew  out  of  his 
anatomical  and  physiological  researches.  He  found  certain 
malformations  of  the  skeleton  and  of  the  viscera  and  several 
abnormalities  in  the  physiological  processes  imusually  prevalent 

oj  Nervous  Activiiy,  in  Science,  N.  S.,  Vol.  XLV,  No.  1173,  J""e  22,  1917, 
pp.  620-621.) 

1 1  have  reviewed  these  studies  at  some  length  in  my  book  entitled  The 
Priticiples  of  Anthropology  and  Sociology  in  Their  Relations  to  Criminal 
Procedure,  New  York,  1908.    See  especially  Chap.  II. 


THE  ORGANIC  BASIS  OF  CRIMINALITY  1 29 

among  the  criminals  he  examined,  and  he  arrived  at  the  conclu- 
sion that  they  constituted  the  traits  of  a  distinct  biological  and 
anthropological  type  which  is  prone  to  become  criminal.  He  also 
concluded,  as  a  result  of  a  study  of  the  equivalents  of  crime 
among  animals  and  among  primitive  men  and  of  the  traits  and 
conduct  of  children,  that  this  congenital  criminal  type  is  to  a 
large  extent  an  atavistic  type.  That  is  to  say,  he  thought  that 
many  of  the  distinctive  traits  of  this  type  are  atavistic  in  the 
sense  that  they  revert  to  earlier  human  types  and  to  pre-human 
ancestors  of  man. 

Furthermore,  Lombroso  studied  the  mental  traits  of  this  type, 
and  arrived  at  the  conclusion  that  the  born  criminal  is  morally 
insane  or  a  moral  imbecile  {fou  moral).  It  is  difficult  to  ascer- 
tain from  the  terminology  used  by  him  whether  he  had  in  mind 
insanity  or  imbeciHty.  But  inasmuch  as  he  recognized  a  dis- 
tinct type  of  insane  criminal,  it  is  probable  that  he  considered 
the  born  criminal  a  moral  imbecile.  According  to  his  theory, 
this  moral  defectiveness  arises  principally  out  of  the  weak 
sensibility  of  the  born  criminal,  which  makes  it  difficult  for  this 
type  of  criminal  to  feel  sympathetically.  He  also  concluded 
that  many  born  criminals  are  epileptic,  and  that  probably  all 
of  them  are  at  least  epileptoid  in  the  sense  that  the  disease  is 
latent  in  them  and  may  become  active  under  favorable  condi- 
tions. He  then  attempted  to  connect  the  moral  imbecility  and 
the  epileptic  tendency  with  the  atavistic  anatomical  and  phys- 
iological traits. 

Lombroso's  theory  of  the  born  criminal  has  created  an  enor- 
mous amount  of  discussion,  criticism,  and  difference  of  opinion, 
which  there  is  not  the  space  to  review  here.^  I  shall  be  able 
merely  to  point  out  some  of  the  main  defects  in  the  theory. 

To  begin  with,  it  is  obvious  that  there  can  be  no  "born" 
criminal  in  the  literal  sense  of  that  term.  No  person  is  a  criminal 
in  the  strict  legal  sense  of  the  term  until  he  has  committed  a 
criminal  act,  and  no  one  could  commit  such  an  act  until  several 
years  after  birth.    Furthermore,  no  person  is  predestined  from 

*  I  have  gone  over  this  ground  at  some  length  in  my  book  entitled  The 
Principles  of  Anthropology  and  Sociology  in  Their  Relations  to  Criminal 
Procedure,  New  York,  1908,  especially  Chaps.  I  and  II;  also  in  my  Intro- 
duction to  the  English  translation  of  Lombroso's  Crime,  Its  Causes  and 
Remedies,  Boston,  191 1. 


130  CRIMINOLOGY 

birth  to  become  a  criminal  on  account  of  hi=  congenital  traits, 
because  criminality  depends  in  part  upon  environment  and  social 
status.  So  that  an  individual  with  all  of  the  distinctive  traits 
of  the  "born"  criminal  may  be  born  a  king  who  is  legally 
incapable  of  committing  any  crime,  or  even  of  doing  any 
wrong! 

On  the  other  hand,  it  is  doubtless  true  that  some  persons  are 
born  with  traits  which  make  them  pecuUarly  prone  to  commit 
crimes  if  their  environment  is  conducive  to  criminal  conduct,  and 
part  of  the  criminal  class  is  recruited  from  this  group.  In  recog- 
nition, therefore,  of  these  powerful  congenital  forces  for  crime, 
there  is  a  measure  of  truth  in  calling  them  born  criminals.  There 
are,  however,  several  egregious  errors  in  Lombroso's  theory. 

Lombroso  seems  to  have  been  rather  ignorant  of  the  modern 
science  of  biology,  and  especially  of  the  theory  of  heredity.  This 
is  indicated  by  the  loose  way  in  which  he  used  the  term  "at- 
avism." Biologists  recognize  that  atavism,  or  reversion,  as 
they  usually  call  it,  takes  place  when  there  reappears  in  an 
individual  of  the  present  day  a  trait  of  an  earlier  type,  provided 
that  this  reappearance  is  due  to  hereditary  forces.  That  is  to 
say,  if  primitive  traits  which  have  long  remained  dormant  re- 
assert themselves  in  the  germ  plasm  at  the  time  of  conception, 
there  is  a  true  case  of  reversion.  But  a  perusal  of  Lombroso's 
writings  shows  that  many  of  the  criminal  traits  which  he  calls 
atavistic  are  not  hereditary  in  their  origin,  but  are  cases  of 
arrested  development  either  before  or  after  birth.  For  example, 
this  is  the  case  when  he  speaks  of  degeneracy  as  a  form  of  at- 
avism, for  most  if  not  all  of  the  traits  he  includes  under  this  term 
are  not  congenital.  The  fact  that  the  individual  has  them  at 
birth  does  not  indicate  necessarily  that  they  are  congenital,  for 
they  may  be  the  result  of  arrested  development  during  the  pre- 
natal period  of  the  life  of  the  individual.  In  other  cases  he 
characterizes  as  atavistic  certain  habits  which  have  been  trans- 
mitted by  social  agencies.  For  example,  he  seems  to  regard  the 
habit  of  tattooing  as  an  atavistic  trait,  though  tattooing  is 
obviously  a  habit  which  could  not  possibly  be  transmitted  by 
hereditary  means.  ^ 

*  For  a  detailed  criticism  of  Lombroso's  atavistic  theory  of  crime,  see 
L.  Manouvrier,  La  genese  normale  du  crime,  in  the  Bulletins  de  la  SociSle 
d' Anthropologie  de  Paris,  Vol.  IV,  1893,  pp.  405-458. 


THE   ORGANIC   BASIS   OF   CRIMINALITY  I3I 

In  fact,  Lombroso's  exposition  of  his  theory  of  the  born  crim- 
inal indicates  that  he  probably  believed  in  the  hereditary  trans- 
mission of  acquired  traits,  though  he  nowhere  explicitly  states 
his  opinion  on  this  point.  But  he  again  and  again  speaks  as  if 
habits  or  the  effects  of  habits  are  transmitted  by  hereditary 
means.  The  consensus  of  opinion  among  biologists  today  is 
that  no  acquired  traits  can  be  transmitted  by  hereditary  means.  ^ 
Consequently,  Lombroso  was  seriously  in  error  in  this  respect, 
and  this  grave  scientific  mistake  greatly  vitiated  the  value  of 
his  theory. 

Lombroso  apparently  believed  that  moral  imbecility  is  a  dis- 
tinct morbid  entity.  This  could  not  be  so  since  morality  is  in 
part  a  social  trait,  but  certain  kinds  of  feeblemindedness  are 
prone  to  give  rise  to  immoral  conduct.  So  that  there  is  no 
distinct  congenital  immoral  type,  the  existence  of  which  he  im- 
plied. Furthermore,  he  exaggerated  the  closeness  of  the  rela- 
tionship between  epilepsy  and  moral  imbecility,  and  over- 
estimated the  amount  of  epilepsy  among  criminals. 

The  theory  of  the  born  criminal  as  a  biological,  anthropological 
t)^e  is  the  most  characteristic  feature  of  Lombroso's  classifica- 
tion of  criminals.  It  is  evident  that  there  is  not  and  could  not 
be  any  such  type  in  the  strict  sense  of  the  term,  and  Lombroso 
committed  some  grave  scientific  errors  in  expounding  his  theory. 
However,  his  theory  has  performed  a  useful  service  in  emphasiz- 
ing some  of  the  powerful  hereditary  factors  for  criminal  conduct 
which  have  been  overlooked  by  many  of  the  writers  on  this 
subject.^ 

The  Organic  Basis  of  the  Mental  Factors  in  Criminality 

The  lowest  animals  and  especially  the  protozoa  give  direct 
reactions  to  external  stimuli  which  are  called  tropisms.  As  we 
go  up  in  the  animal  scale,  and  especially  as  the  nervous  system 
evolves,  many  reflex  actions  appear,  and  then  combinations  of 
these  reflexes  in  complex  forms  which  are  called  instincts.  Man, 
like  all  of  the  higher  animals,  has  inherited  many  of  these  in- 

'  I  have  summarized  the  modern  theory  of  heredity  in  my  books  entitled 
The  Science  of  Human  Behavior,  New  York,  1913,  Chaps.  Ill  and  IV;  and 
Poverty  and  Social  Progress,  New  York,  19 16,  Chap.  III. 

*  See  ApiJendix  B. 


I32  CRIMINOLOGY 

stincts  which  furnish  most  if  not  all  of  the  dynamic  impulse  to 
action,  and  form  the  groundwork  of  his  behavior.  According  to 
the  conditions  and  circumstances  of  the  life  of  the  individual, 
variations  in  these  inherited  modes  of  behavior  are  acquired 
which,  if  they  become  more  or  less  fixed,  are  called  habits. 

Feeling  and  intelligence  are  two  other  inherited  aspects  of 
man's  mental  makeup  which  play  an  important  part  in  the 
determination  of  human  behavior,  if  not  by  furnishing  a  direct 
impulse  to  action,  at  any  rate  by  influencing  the  direction  which 
the  instinctive  impulse  takes.  Like  all  other  mental  phenomena, 
feeling  is  based  upon  the  nervous  system,  for  no  manifestations, 
direct  or  indirect,  of  feelings  have  ever  been  observed  apart  from 
the  nervous  system.  In  all  probability  feelings  are  primarily 
sensations,  like  all  impressions  received  through  the  senses. 
Many  of  the  feelings,  indeed  perhaps  all  of  them,  are  pleasurable 
or  painful.  If  this  is  true  of  all  of  them,  pleasure  and  pain  may 
be  the  distinctive  traits  of  feeling. 

The  pleasurable  and  painful  elements  in  feeling  are  of  chief 
importance  for  the  determination  of  behavior.  They  are  im- 
portant because  pain  and  pleasure  furnish  guidance  for  the  con- 
scious and  unconscious  selection  of  different  modes  of  behavior. 
An  infant  who  has  experienced  painful  feelings  from  fire  will 
thereafter  avoid  it,  while  the  pleasures  of  the  milk  bottle  will 
attract  him.  So  that  while  the  feelings  do  not  in  themselves 
furnish  a  dynamic  impulse,  they  influence  behavior  greatly  by 
encouraging  or  inhibiting  the  instinctive  and  reflex  impulses  of 
the  organism.  It  may  also  be  true  that  an  emotion,  which  is  a 
complex  and  highly  organized  state  of  feeling,  will  sometimes 
reenforce  and  strengthen  a  tendency  to  an  action  in  order  to 
secure  the  relief  which  comes  through  action.  This  probably 
happens  when  the  emotional  state  involves  tense  or  congested 
organic  conditions  which  can  be  removed  only  by  means  of 
action. 

The  third  fundamental  aspect  of  mind  is  the  intelligence  or 
intellect.  This  aspect,  like  the  two  preceding  aspects,  is  based 
upon  the  nervous  system.  It  arises  primarily  out  of  the  ability 
of  the  nervous  system  to  make  a  record  of,  or  to  register,  so  to 
speak,  the  stimulations  which  it  receives  and  the  motor  impulses 
which  pass  out  along  its  neural  paths.  This  record  constitutes 
the  memory,  and  as  it  grows  in  extent  it  influences  behavior 


THE  ORGANIC  BASIS  OF  CRIMINALITY  I33 

more  and  more.  When  the  records  of  these  experiences  are 
stimulated  in  the  nervous  system,  they  form  images  and  ideas 
!♦.  which  inhibit  or  reenforce  impulses  to  action,  and  furnish  ends 
for  such  action.  In  this  fashion  the  inteUigence  increases  greatly 
the  variability  of  behavior.  Furthermore,  it  makes  possible 
conscious  behavior. 

The  physical  basis  of  mind  is  neural.  All  of  the  mental 
phenomena  which  I  have  described,  namely,  the  instinctive, 
the  affective,  and  the  intellectual  phenomena,  take  place  through 
the  agency  of  the  nervous  system.  The  instincts  function,  in  the 
first  place,  because  stimuli  from  sense  organs  pass  over  nerve 
fibers  to  the  central  nerve  cells  which  constitute  the  centers  for 
the  instincts  in  the  central  nervous  system.  These  centers  are 
probably  localized  mainly  in  the  spinal  cord,  the  medulla,  and 
the  cerebellum.  The  instincts  function,  in  the  second  place, 
because  impulses  are  sent  out  from  these  centers  and  travel  over 
nerve  fibers  to  the  muscles  which  perform  the  instinctive  acts. 
Feelings  are  possible  only  where  nerve  fibers  are  present,  and 
probably  arise  mainly  as  a  result  of  stimulation  of  the  sym- 
pathetic nervous  system.  The  intelligence  is  localized  in  the 
association  areas  of  the  cortex  of  the  brain. 

Consequently,  inherited  variations  in  the  nervous  system  may 
give  rise  to  exceptional  strength  or  exceptional  weakness  of  some 
of  the  instincts  and  feelings.  In  similar  fashion,  use  or  disuse 
may  lead  to  acquired  variations,  which  may  in  turn  result  in  the 
accentuation  or  inhibition  of  instincts  and  feelings.  The  strength 
of  the  intellect  depends  largely  upon  the  acuteness  of  the  sense 
organs,  the  efficiency  of  the  sensory  nerve  fibers,  and  the  num- 
ber and  quality  of  the  association  centers  in  the  cerebrum  which 
are  inherited.  But  it  depends  also  upon  the  training  it  receives, 
and  the  ideas  it  acquires  from  its  social  environment.  Modern 
neurological  research  has  thrown  much  light  upon  the  basis  and 
mechanism  of  inheritance. 

Numerous  abnormalities  manifest  themselves  in  all  of  these 
aspects  of  mind.  If  these  abnormalities  exist  from  birth,  they 
may  be  due  to  congenital  variations.  Hereditary  variations 
may  have  taken  place  in  sensory,  motor,  or  central  nerve  centers 
which  make  certain  instincts  stronger  or  weaker.  Or  variations 
may  have  taken  place  in  sensory  or  central  nerve  centers,  or  in 
some  of  the  viscera,  which  change  the  nature  of  the  feelings  in 


134  CRIMINOLOGY 

such  a  manner  as  to  lead  to  criminal  conduct.  Or  variations 
may  have  taken  place  in  the  cortex  of  the  brain  which  weaken 
the  intelligence. 

But  anatomical  and  physiological  traits  which  are  abnormal 
from  the  time  of  birth  are  perhaps  more  likely  to  be  due  to  irreg- 
ularities in  the  development  previous  to  birth,  such  as  are  due 
to  pressure  on  the  brain,  ill-nutrition,  etc.  These  conditions 
may  prevent  the  cerebral  cortex  or  outer  covering  of  the  brain 
from  developing  fully.  Most  of  the  important  nerve  centers 
are  to  be  found  in  the  gray  matter  of  this  outer  covering.  Con- 
sequently, the  mental  makeup,  and  therefore  the  conduct  of 
the  individual,  depends  in  large  part  upon  the  texture  of  this 
cortex.  When  the  mind  never  attains  its  full  development,  a 
state  of  feeblemindedness  or  amentia  is  said  to  exist. 

If  the  pathological  mental  condition  appears  after  birth,  it 
may  be  the  result  of  the  degeneration  of  a  cortical  substance 
which  is  caused  by  a  cerebral  disease,  and  which  may  give  rise 
to  a  state  of  dementia.  Or  it  may  be  caused  by  a  brain  tumor, 
or  it  may  be  the  result  of  lesions  caused  by  accident.  Some- 
times ill-nutrition  or  malnutrition,  especially  if  it  is  experienced 
early  in  life,  causes  a  general  defective  condition  of  the  brain 
which  manifests  itself  in  mental  abilities  of  a  low  order,  and  in 
some  cases  results  in  a  positive  derangement  of  the  mental 
faculties  which  is  ordinarily  called  insanity. 

These  abnormal  or  pathological  neural  conditions  result  in 
abnormal  conduct  of  all  kinds,  some  forms  of  this  conduct  being 
criminal.  The  excessive  strength  or  weakness  of  some  of  the 
instincts  may  furnish  a  powerful  impulse  towards  crime,  or 
may  remove  a  powerful  restraint  which  acts  upon  most  persons. 
In  similar  fashion,  the  excessive  strength  or  weakness  of  some 
of  the  feelings  may  furnish  a  powerful  impulse  towards  some 
kinds  of  criminal  conduct,  such  as  crimes  of  passion,  or  may 
remove  the  restraint  from  certain  other  kinds  of  criminal  con- 
duct. 

I  shall  now  describe  briefly  the  organic  causes  of  these  ab- 
normal and  pathological  mental  states.  It  is  a  common  belief 
that  nervous  diseases  are  inherited.  This  belief  is  probably 
due  mainly  to  the  fact  that  nervous  infirmity  reappears  fre- 
quently in  the  generations  of  certain  lines  of  descent.  But  it 
may  have  arisen  in  part  out  of  the  idea  that,  because  of  the 


THE   ORGANIC   BASIS   OF   CRIMINALITY  I3S 

delicate  and  refined  structure  of  the  nervous  system,  and  be- 
cause of  the  great  extent  to  which  it  influences  conduct,  very 
slight  changes  in  the  germ  plasm  may  lead  to  rather  extensive 
abnormalities  in  the  nervous  system  and  to  serious  functional 
derangements  of  conduct.  There  is  doubtless  a  good  deal  of 
truth  in  both  of  these  ideas.  But  it  is  not  necessarily  true  that 
nervous  infirmities  as  such  are  transmitted  by  heredity,  or, 
at  any  rate,  this  may  be  true  only  of  some  of  them.  In  the  case 
of  other  nervous  infirmities  the  hereditary  forces  may  work 
somewhat  more  indirectly  in  causing  these  infirmities. 

The  Organic  Causes  of  Amentia 

The  belief  that  nervous  and  mental  infirmities  are  hereditary 
has  been  most  prevalent  with  respect  to  congenital  feeble- 
mindedness or  amentia,  so  that  many  persons  believe  that 
amentia  is  always  inherited.  This,  however,  is  not  the  case. 
The  neural  basis  of  amentia  is  subnormal  cerebral  development. 
This  is  due  in  many  cases  to  hereditary  forces,  but  is  sometimes 
due  to  environmental  forces  which  retard  the  development  of 
the  brain. 

Several  theories  as  to  the  hereditary  causes  of  amentia  have 
been  offered  which,  however,  are  not  mutually  exclusive  of 
each  other.  It  has  been  suggested  that  amentia  may  be  due  to 
diminished  germinal  vitality.  This  diminution  does  not  neces- 
sarily cause  amentia  in  the  first  generation.  The  neuropathic 
diathesis  to  which  it  gives  rise  may  manifest  itself  in  a  polymor- 
phic fashion  in  the  forms  of  neuroses,  abnormal  appetites,  etc. 
But  if  germinal  recuperation  does  not  take  place  and  the  vital- 
ity continues  to  diminish  from  generation  to  generation  the 
result  may  be  amentia,  because,  owing  to  the  weakened  germ, 
the  cerebrum  fails  to  develop  fully.  It  goes  without  saying 
that  this  weakness  of  the  germ  need  be  only  with  respect  to  the 
parts  of  the  germ  which  determine  the  development  of  the  cere- 
brum or  of  the  nervous  system,  and  does  not  necessarily  affect 
other  parts  of  the  germ  cell. 

Another  theory  is  that  amentia  is  due  to  atavism  or  reversion. 
Presumably  this  is  due  to  the  fact  that  certain  parts  of  the  germ 
cell  which  have  evolved  in  the  later  stages  of  phylogenetic 
evolution  and  which  play  a  part  in  cerebral  development  fail 


136  CRIMINOLOGY 

to  develop  at  all,  or  develop  only  partially,  thus  giving  "rise  to 
subnormal  cerebral  development. 

Still  another  theory  has  been  to  the  effect  that  amentia  is  due 
to  variations  in  the  germ  cell.  Presumably  these  would  be 
variations  of  such  a  nature  as  to  omit  certain  parts  of  the  germ 
cell  essential  for  complete  cerebral  development,  though  it  is 
conceivable  that  variations  of  other  kinds  might  also  give  rise 
to  amentia.  Some  biologists  have  thought  that  these  variations 
are  small  in  size  but  cumulative  in  their  effect.  Other  biologists 
have  thought  that  they  are  large  in  size  and  are  of  the  nature  of 
mutations  governed  by  the  Mendelian  laws  of  inheritance. 

These  theories  are  not  necessarily  mutually  exclusive  of  each 
other.  This  is  obvious  when  we  consider  the  causes  of  these 
changes  in  the  germ  cell.  For  example,  among  the  causes  of 
germinal  variation  which  have  been  suggested  are  neuropathic 
inheritance,  alcoholism,  tuberculosis,  syphilis,  morbid  con- 
sanguinity, etc.  Diminution  of  germinal  vitality  may  be  the 
cause  of  a  neuropathic  inheritance  or  of  alcoholism,  or  of  any 
other  pathological  condition.  Or  alcoholism,  tuberculosis,  or 
syphilis  may  be  the  cause  of  the  diminution  of  germinal  vitality 
which  may  in  turn  cause  the  variation.  So  that  these  factors 
may  cooperate  more  or  less  in  giving  rise  to  hereditary  amentia. 
In  view  of  our  limited  knowledge  of  heredity  it  is  hardly  possible 
to  be  more  explicit  in  this  analysis  of  the  hereditary  causes  of 
amentia.  But  however  the  changes  may  come  about,  it  is 
evident  that  for  the  amentia  to  be  hereditary  there  must  be 
changes  in  the  germ  cell  which  give  rise  to  subnormal  cerebral 
development,  thus  preventing  mental  development  beyond  a 
certain  point. 

But  amentia  may  be  due  to  changes  which  take  place  after 
the  development  of  the  individual  has  begun.  Among  the 
causes  of  acquired  amentia  are  an  abnormal  physical  condition 
of  the  pregnant  mother,  injuries  to  the  fetus,  abnormal  child 
labor,  traiunatic  injuries  to  the  young  child,  toxic  influences 
upon  the  young  child  due  to  toxic  fluids  introduced  into  the 
body  or  generated  within  the  body  by  certain  diseases,  various 
nutritional  conditions,  etc.  In  each  of  these  cases  the  develop- 
ment of  the  cerebrum  is  arrested  to  such  a  degree  and  so  per- 
manently that  full  mental  development  becomes  forever  impos- 
sible for  that  individual.    It  is  probable  that  in  many,  perhaps 


THE   ORGANIC   BASIS   OF  CRIMINALITY  I37 

in  the  great  majority  of  cases,  hereditary  and  environmental 
factors  combine  to  cause  the  amentia.^ 

The  Organic  Causes  of  Dementia,  the  Neuroses,  and 
Abnormal  Appetites 

Probably  most  if  not  all  of  the  causes  of  amentia  which  have 
been  mentioned  also  act  as  causes  of  dementia.  In  the  case  of 
dementia,  however,  they  act  in  such  a  fashion  that  they  do  not 
prevent  the  full  development  of  the  cerebrum,  but  give  rise  to  a 
degenerative  process  after  it  has  developed.  With  respect  to 
the  hereditary  causes  a  difference  in  the  strength  of  the  cause 
may  determine  in  some  cases  whether  it  will  give  rise  to  amentia 
or  to  dementia.  In  other  cases  differences  in  the  quality  of  the 
hereditary  factors  may  determine  whether  they  will  cause  amen- 
tia or  dementia.  If  the  environmental  factors  affect  the  subject 
after  full  cerebral  development  has  taken  place,  they  cannot 
cause  amentia,  but  may  cause  dementia. 

These  factors  also  play  an  important  part  in  causing  the 
neuroses,  and  in  creating  abnormal  appetites,  which  lead  to 
alcoholism,  drug  habits,  etc.  These  are  milder  polymorphic 
manifestations  of  a  process  which  may  lead  to  dementia.  In- 
sanity is  almost  always  if  not  inevitably  a  result  of  dementia, 
but  may  sometimes  be  the  result  of  neuronic  derangement 
which  does  not  necessarily  result  in  dementia.  Insanity,  like 
these  other  forms  of  mental  infirmity,  may  be  due  to  hereditary 
factors  or  to  environmental  factors,  probably  usually  to  a  com- 
bination of  both  kinds  of  factors.  And  it  is  well  to  remember 
that,  whether  the  causes  are  hereditary  or  environmental,  mental 
infirmity  always  arises  directly  out  of  an  abnormal  and  patho- 
logical condition  of  the  neurones  in  the  nervous  system,  and 
more  particularly  in  the  cerebrum.  Clinical  microscopic  study 
has  furnished  many  facts  concerning  these  pathological  neuronic 
conditions. 

In  fact,  it  is  inconceivable  that  there  are  any  so-called  "func- 
tional" diseases  which  give  rise  to  mental  infirmity.  By  "func- 
tional" diseases  are  usually  meant  the  diseases  which  are  sup- 
posed to  have  no  abnormal  or  pathological  anatomical  basis 

^  Tredgold  is  of  the  opinion  that  not  more  than  10  or  15  per  cent  of  the 
cases  of  amentia  are  caused  solely  by  environment.  [A.  F.  Tredgold,  Mental 
Deficiency  {Amentia),  New  York,  1914,  p.  37.] 


138  CRIMINOLOGY 

in  the  nervous  system,  as  distinguished  from  the  so-called 
"organic"  diseases  which  are  due  to  lesions  or  other  derange- 
ments of  the  nervous  system  which  are  definitely  localized.  It 
cannot  be  emphasized  too  strongly  that  the  so-called  functional 
as  well  as  the  so-called  organic  diseases  have  an  anatomical 
basis,  and  that  they  differ  from  each  other  only  in  that  the 
anatomical  variations  from  the  normal  are  not  so  extensive, 
or  that  they  are  much  more  numerous  and  more  widely  dis- 
tributed, though  less  extensive,  in  functional  diseases  than  they 
are  in  organic  diseases.  Furthermore,  it  is  true  that  the  organic 
disease  is  also  a  functional  one  in  the  sense  that  one  or  more 
organic  functions  must  have  been  disturbed  where  the  organic 
disease  exists.  So  that  in  the  last  analysis  there  is  a  funda- 
mental likeness  between  the  organic  and  the  functional  disease, 
and  the  study  of  each  of  them  involves  the  study  of  an  anatomi- 
cal basis  and  of  physiological  activities. 

Race  and  Criminality 

Before  closing  this  chapter  I  wish  to  discuss  briefly  the  rela- 
tion between  race  and  criminality.  Racial  variations  within 
the  human  species  are  revealed  to  the  eye  by  such  external 
traits  as  skin  color,  form  and  color  of  the  hair,  shape  of  the 
features  of  the  face,  stature,  etc.  The  existence  of  these  external 
differences  makes  plausible  a  belief  in  internal  racial  differences 
as  well.  Furthermore,  the  obvious  effects  of  climate  and  the  geo- 
graphical distribution  of  the  human  races,  which  follows  in  part 
the  climatic  lines,  have  suggested  that  the  racial  variations  were 
due  originally  in  large  part  if  not  entirely  to  climatic  differences. 

Some  writers  have  accentuated  the  variation  between  the 
races.  They  have  contended  that  not  only  great  physical  but 
also  great  mental  differences  exist  between  the  races,  and  that 
these  differences  explain  in  large  part  the  cultural  differences 
between  the  peoples  of  the  world.  Some  of  these  writers  have 
instituted  invidious  comparisons  between  these  races  by  rating 
certain  of  them  as  superior  races  and  others  of  them  as  inferior 
races.  ^ 

It  was  to  be  expected,  therefore,  that  the  attempt  would  be 

^See,  for  example,  the  writings  of  de  Gobineau,  H.  S.  Chamberlain,  and 
of  the  so-called  anthropo-sociological  school  such  as  Vacher  de  Lapouge 
and  O.  Ammon. 


THE   ORGANIC  BASIS  OF   CRIMINALITY  I39 

made  to  account  for  the  difTerences  in  the  criminality  of  the 
peoples  and  inhabitants  of  the  different  parts  of  the  world  by 
racial  variation.  For  example,  Lombroso  ^  has  given  much 
weight  to  racial  factors  in  the  causation  of  criminality.  He 
characterizes  peoples  as  being  racially  inferior  or  racially  su- 
perior. Furthermore,  his  theory  of  atavistic  reversion  as  a 
cause  of  criminality,  which  I  have  criticized  in  this  chapter,  is 
closely  connected  with  his  theory  of  the  influence  of  race,  for 
he  frequently  implies  in  his  writings  that  the  atavistic  traits 
of  the  criminal  take  the  form  of  a  reversion  to  the  traits  of  an 
inferior  race. 

There  is  not  the  space  to  discuss  at  length  the  influence  of 
race.  Suffice  it  to  say  that  in  all  probability  this  influence  is 
not  so  great  as  is  generally  believed.  The  reason  for  this  popular 
belief  doubtless  is  that  the  internal,  mental  differences  between 
the  races  are  assumed  to  be  as  great  as  the  external  differences 
are  or  appear  to  be.  But  most  of  the  external  and  the  physical 
differences  are  not  so  great  as  they  appear  to  be.  Furthermore, 
the  internal,  mental  differences  are  not  necessarily  so  great 
as  the  external,  physical  differences.  It  is  needless  to  say  that 
by  the  last  remark  I  do  not  mean  to  imply  that  mind  is  not 
based  upon  matter,  and  that  its  nature  is  not  determined  in  the 
last  analysis  by  its  physical  basis.  But  the  physical  basis  of  the 
mind  is  to  be  found  in  the  main  in  the  nervous  system,  and  the 
color  of  the  skin,  the  stature,  etc.,  are  of  little  importance  for 
the  nervous  system. 

So  far  as  the  available  facts  throw  light  upon  the  relative 
mentality  of  the  different  races,  the  situation  seems  to  be  some- 
what as  follows.  No  differences  between  the  brains  of  the 
different  races  have  been  found  which  are  sufficiently  extensive 
or  of  so  crucial  a  nature  as  to  justify  the  belief  that  there  are 
any  great  differences  in  the  intellectual  traits  of  the  different 
races.  Furthermore,  observations  which  have  been  made  of  the 
processes  of  thinking  of  the  different  races  indicate  that  these 
processes  are  much  the  same  the  world  over,  the  apparent  dif- 
ferences probably  being  explicable  in  large  part  if  not  entirely 
by  cultural  variations. 

^  C.  Lombroso,  Crime,  Its  Causes  and  Remedies,  Boston,  iQii,  Part  I. 
Chap.  3.  See  also  his  earlier  discussion  in  his  treatise  on  criminal  man, 
{Uiiotno  dclinqucnlc,  Vol.  1;  Vhomme  criminel,  Vol.  I.) 


I40  CRIMINOLOGY 

For  similar  reasons  it  is  very  doubtful  if  there  are  any  material 
differences  in  the  instinctive  traits  of  the  diflferent  races.  The 
human  instincts  are  deeply  rooted  not  only  in  anthropoid  but 
also  in  mammalian  and  vertebrate  structure  and  organization, 
so  that  it  is  not  to  be  expected  that  there  are  any  material  dif- 
ferences in  these  fundamental  instinctive  traits  between  the 
minor  subdivisions  of  the  human  species. 

The  same  is  doubtless  true  in  the  main  of  the  affective  traits 
as  well.  That  is  to  say,  the  states  of  feeling  and  the  emotions 
are  in  their  main  outline  the  same  for  the  different  races.  But 
there  are  some  reasons  for  believing  that  there  is  more  variation 
in  the  affective  makeup  of  the  different  races  than  there  is  in 
their  intellectual  and  instinctive  traits.^  Modern  psychological 
study  of  the  emotions  has  indicated  that  they  are  governed  and 
determined  in  the  main  by  the  so-called  sympathetic  nervous 
system.  This  part  of  the  general  nervous  system  controls  the 
internal  organs.  Climatic  differences  give  rise  to  considerable 
variation  in  the  processes  of  these  organs.  The  circulation  of 
the  blood  varies  somewhat  with  variations  in  the  temperature. 
In  similar  fashion  variations  arise  in  the  assimilative  and  ex- 
cretory processes. 

It  is  very  probable,  therefore,  that  variations  in  these  physio- 
logical processes  react  upon  the  sympathetic  nervous  system, 
and  thus  give  rise  to  variations  in  the  emotional  states.  Further- 
more, it  is  possible  that  races  tend  to  become  more  or  less  adapted 
to  their  climatic  conditions  by  means  of  permanent  changes  in 
these  physiological  processes,  thus  giving  rise  to  permarlfent 
variations  in  their  emotional  traits. 

It  is  possible  that  this  theory  explains  in  large  part  the  varia- 
tion in  the  number  of  crimes  against  the  person  between  hot 
and  cold  climates,  which  we  have  noted  in  Chapter  IV.  This 
variation  would  then  be  due  in  part  to  existing  climatic  differ- 
ences, and  in  part  to  differences  in  the  emotional  traits  of  races 
which  have  been  caused  by  climatic  conditions  in  the  past.^ 

*  I  have  advanced  this  theory  in  a  brief  article  entitled  Ethnic  Factors  in 
International  Relations,  in  the  Popular  Science  Monthly,  Vol.  LXXXV, 
August,  1914,  pp.  146-153- 

*  For  an  intensive  study  of  the  influence  of  race  upon  one  form  of  crime 
against  the  person,  namely,  homicide,  see,  E.  Ferri,  L'omicidio  nelV  antro- 
pologia  criminate,  Turin,  1895,  pp.  243-309. 


THE  ORGANIC  BASIS  OF  CRIMINALITY  14I 

It  is  to  be  hoped  that  the  influence  of  race  upon  cultural  phe- 
nomena in  general  and  upon  the  moral  phenomena  in  which  we 
are  particularly  interested  will  be  carefully  studied  in  the  future. 
In  the  meantime  it  is  well  to  beware  of  extreme  statements  of 
the  influence  of  race  in  which  its  influence  is  obviously  or  in  all 
probability  being  confused  with  the  influence  of  other  factors.^ 

'  For  criticisms  of  these  extreme  statements  see,  N.  Colajaniii,  La  so- 
ciologia  criminale,  Catania,  1889,  Vol.  I,  Chap.  6,  Vol.  II,  Chap.  5;  G.  Aschaf- 
fenburg,  Crime  and  Its  Repression,  Boston,  1913,  pp.  30-51. 


CHAPTER  X 
THE  MENTAL  BASIS  OF  CRIMINALITY 

Instinct  —  Habit  —  Feeling  —  Intelligence  —  Types  of  mental  abnormality: 
amentia,  dementia,  insanity,  the  neuroses,  abnormal  habits  —  The 
mental  inadaptability  of  the  criminal  —  Mental  defect  and  moral  de- 
ficiency: moral  imbecility  and  insanity  —  The  social  maladjustment 
of  the  criminal. 

In  order  to  comprehend  the  mental  states  which  lead  to  crim- 
inal conduct,  both  general  and  individual  sources  of  information 
must  be  used.  The  general  source  is  to  be  found  in  psychology. 
The  science  of  psychology  has,  to  be  sure,  developed  as  a  result 
of  the  study  of  individuals.  But  these  individuals  have  not 
usually  been  criminals,  and  the  results  of  much  of  this  study  are 
of  significance  with  respect  to  all  kinds  of  human  beings.  The 
individual  source  of  information  is  to  be  found  in  the  study  of 
individual  criminals.  The  importance  of  this  study  is  indicated 
by  the  fact  that  only  by  means  of  such  study  can  be  ascertained 
the  peculiar  features  of  criminal  character. 

Instinct 

In  the  preceding  chapter  the  three  fundamental  aspects  of 
mind,  namely,  instinct,  feeling,  and  intelligence  have  already 
been  mentioned.  In  another  work  I  have  defined  instinct  in  the 
following  terms:  —  "An  instinct  is  an  inherited  combination  of  re- 
flexes which  have  been  integrated  by  the  central  nervous  system  so 
as  to  cause  an  external  activity  of  the  organism  which  usually 
characterizes  a  whole  species  and  is  usually  adaptive. ^^  ^  The  in- 
stincts are  inherited  modes  of  response  to  specific  stimuli.  Hu- 
man beings  possess  many  instincts,  some  of  which,  or  combina- 

^  The  Science  of  Human  Behavior,  New  York,  1913,  p.  226.  In  Chapters 
XI-XVI  of  that  book  T  have  described  at  considerable  length  the  nature  of 
instinct,  feeling,  and  intelligence.  That  description  furnishes  a  psycho- 
logical basis  for  the  present  chapter.  The  reader  is  referred  to  that  book  for 
further  details. 


THE  MENTAL  BASIS   OF   CRIMINALITY  I43 

tions  of  which  in  the  form  of  "chain  instincts,"  are  very  complex. 
Some  of  the  most  important  and  complex  human  instincts  are 
the  instincts  of  pugnacity  and  of  flight,  the  sexual  instinct,  the 
hunting  instinct,  the  parental  instincts;  while  some  psychol- 
ogists think  that  there  are  instincts  of  acquisition  and  of  con- 
struction. 

The  term  "instinct"  is  frequently  misused.  It  is  often  ap- 
plied to  habitual  modes  of  behavior  which  have  been  acquired 
and  not  inherited.  Because  of  their  regularity  and  persistence 
habits  are  frequently  called  instinctive  by  persons  who  do  not 
recognize  their  origin.  This  is  a  grave  error  both  for  scientific 
and  practical  reasons,  because  the  methods  of  influencing  ac- 
quired habit  and  inherited  instinct  differ  greatly.  Furthermore, 
instinctive  tendencies  are  often  reenforced  or  inhibited  in  part  or 
entirely  by  habit,  and  it  is  important  to  measure  as  accurately 
as  possible  the  influence  of  habit  upon  instinct.  In  fact,  it  is 
probable  that  habit  is  always  superimposed  upon  an  instinctive 
basis,  and  both  the  scientific  and  the  practical  problem  in  the 
study  of  any  kind  of  behavior  is  to  determine  to  what  extent  it 
is  due  to  hereditary  factors  and  to  what  extent  it  is  acquired. 

Many  general  modes  of  behavior  which  have  an  hereditary 
basis,  but  which  are  in  the  main  acquired,  are  called  instincts, 
as,  for  example,  the  so-called  moral,  religious,  patriotic,  benev- 
olent, political,  and  criminal  instincts.  These  combinations  of 
instincts  and  of  habits  may  be  called  general  innate  tendencies. 
Among  them  are  imitation,  play,  gregariousness,  rivalry,  work- 
manship, while  even  so  general  a  trait  as  the  tendency  to  form 
habits  has  been  called  a  general  innate  tendency. 

Feeling 

Feeling  is  the  most  subjective  part  of  the  mental  makeup. 
Consequently,  it  is  more  difficult  to  describe  it  in  a  concrete  and 
objective  manner  than  the  other  aspects  of  mind.  It  is,  of  course, 
difficult  to  describe  any  mental  phenomena  in  concrete  terms. 
However,  instincts  as  tendencies  towards  definite  modes  of 
action  involve  visual,  auditory,  and  other  sensations  which  aid 
in  making  the  concept  of  instinct  more  or  less  objective.  The 
intelligence  also,  which  we  are  about  to  discuss,  contains  ideas 
which  arouse  visual,  auditory,  and  other  memories  which  aid 
in  making  our  conception  of  intelligence  more  or  less  concrete. 


144  CRIMINOLOGY 

But  while  all  persons  experience  feeling,  and  have,  therefore, 
what  is,  so  to  speak,  an  intimate  inner  knowledge  of  it;  to 
define  it  in  terms  of  the  external  world  is  practically  impossible, 
because  nothing  that  is  it  or  for  which  it  stands  exists  in  that 
outer  world  in  such  a  form  that  we  can  receive  a  sense  impression 
of  it.  To  be  sure,  each  person  has  reason  to  believe  that  feeling 
exists  outside  of  himself  in  his  fellows,  because  of  certain  traits 
exhibited  by  his  fellows  which  by  analogy  with  himself  he  re- 
gards as  indirect  manifestations  of  feeUng,  For  example,  if  a 
fellow  being  exhibits  a  facial  expression  and  motions  which  are 
similar  to  the  expression  and  motions  which  accompany  joyful 
feelings  in  himself,  he  naturally  assumes  that  this  fellow  being 
is  experiencing  similar  feelings.  But,  strictly  speaking,  he  can 
have  a  firsthand  knowledge  of  feeling  only  in  himself. 

Notwithstanding  the  highly  subjective  nature  of  feeling,  sev- 
eral facts  are  known  about  it.  Elsewhere  I  have  stated  that 
^'feelings  are  certain  kinds  of  sensations,  or,  at  any  rate,  certain 
aspects  of  certain  kinds  of  sensations,"  ^  and  have  suggested  that 
the  feelings  may  comprize  and  be  coextensive  with  the  painful 
and  pleasurable  sensations.  But  even  though  it  is  impossible 
to  define  feeling  precisely,  we  have  ample  evidence  in  our  own 
personal  experience  of  its  existence,  and  of  its  potent  influence 
upon  behavior.  It  has  this  influence  because  painful  feelings 
tend  to  inhibit  the  acts  which  give  rise  to  them,  or  to  draw  the 
subject  experiencing  them  away  from  the  stimuli  which  cause 
them;  while  pleasurable  feelings  tend  to  reenforce  the  acts  which 
give  rise  to  them,  and  to  draw  the  subject  towards  the  stimuli 
which  cause  them. 

There  are  various  kinds  of  feelings  ranging  from  simple, 
highly  localized  feelings  to  complex,  constitutional  feehngs. 
Some  of  the  most  complex  feelings,  or  combinations  of  feelings, 
are  called  emotions.  The  emotions  are  aroused  in  the  nervous 
system,  and  in  the  sympathetic  nervous  system  in  particular, 
apparently  by  the  processes  of  the  viscera  and  of  the  vascular 
system,  and  by  the  internal  movements  caused  by  muscular 
activity.  Consequently,  certain  forms  of  activity,  such  as  some 
of  the  instincts,  are  apparently  accompanied  by  characteristic 
emotional  states.  Some  of  the  most  important  emotions  are 
anger,  fear,  jealousy,  the  sexual  and  parental  emotions,  etc. 
*  Op.  cit.,  p.  297, 


THE   MENTAL  BASIS   OF  CRIMINALITY  I45 

And,  just  as  in  addition  to  the  distinct  instincts  there  are  the 
general  innate  tendencies  to  action,  so  in  addition  to  the  dis- 
tinct emotions  there  are  general  affective  states  such  as  envy, 
sympathy,  shyness,  sociability,  etc. 

In  popular  parlance  it  is  customary  to  confuse  some  of  the 
instincts  and  emotions.  For  example,  fear  is  frequently  spoken 
of  as  being  instinctive,  by  which  is  probably  meant  ordinarily 
that  it  is  an  hereditary  trait.  Instincts  and  emotions  are  alike 
in  being  inherited.  But  instincts  are  inherited  tendencies  to 
action,  while  emotions  are  states  of  feeling,  so  that  instincts 
and  emotions  are  not  identical.  They  are,  however,  closely  re- 
lated to  each  other,  and  the  emotion  of  fear  is  probably  most 
closely  related  to  the  instinct  of  flight.  In  similar  fashion  anger 
is  frequently  called  an  instinct,  whereas  it  is  evident  that  it  is  an 
emotion  which  is  probably  most  closely  related  to  the  pugnacious 
or  combative  instinct. 

It  is  important  to  distinguish  clearly  between  instincts  and 
emotions,  not  only  for  scientific  but  also  for  practical  reasons. 
It  is  impossible  to  influence  criminal  conduct,  or  any  other  kind 
of  behavior,  intelligently  and  therefore  eff"ectively  without  under- 
standing to  what  extent  it  is  due  to  instinctive  tendencies  and  to 
what  extent  to  emotional  states,  because  instincts  and  emotions 
must  be  treated  in  very  different  ways  because  of  their  radically 
different  nature.  Much  intensive  study  is  now  being  devoted 
by  psychologists  to  the  instincts  and  emotions,  as  a  result  of 
which  the  specific  instincts  and  emotions  will  be  segregated, 
and  will  be  described  in  much  greater  detail  than  is  possible  at 
present. 

Intelligence 

The  third  fundamental  aspect  of  mind,  namely,  intelligence  or 
the  intellect,  plays  an  important  part  in  the  formation  of  habit 
and  in  directing  conscious  and  unconscious  behavior.  Elsewhere 
I  have  said  that  "in  an  animal  with  a  well-developed  central 
nervous  system  which  has  acquired  a  large  and  varied  store  of 
memories,  the  behavior  which  results  from  a  certain  stimulus  may 
be  vastly  different  from  the  purely  inherited  reaction  which  would 
respond  to  that  stimulus  if  these  memories  were  not  present  to  vary 
and  complicate  the  behavior.    Such  behavior  is  intelligent,  and  the 


146  CRIMINOLOGY 

capacity  for  such  variations  in  behavior  constitutes  intelligence.''^  ^ 
These  memories,  which  are  reproductions  in  the  form  of  images 
of  objects  not  actually  present  to  the  senses,  and  combinations  of 
these  memories,  are  ordinarily  called  ideas. 

In  every  intelligent  animal  the  behavior  is  greatly  influenced 
by  ideas,  so  that  a  good  deal  of  its  activity  is  ideo-motor.  In 
order  to  understand  conduct,  it  is  important  to  ascertain  as 
accurately  as  possible  to  what  extent  it  is  ideo-motor.  It  is  not 
possible  otherwise  to  measure  the  influence  of  experience,  train- 
ing, and  learning,  in  other  words,  the  influence  of  the  environ- 
ment upon  the  individual.  Much  intensive  study  is  now  being 
devoted  by  psychologists  to  intelligence,  so  that  it  will  be  pos- 
sible in  the  future  to  measure  more  accurately  the  extent  to 
which  human  behavior  is  determined  by  the  intellect. 

We  can  now  readily  perceive  how  necessary  it  is  to  acquaint 
ourselves  with  both  the  normal  and  the  abnormal  mental  traits 
of  human  beings  in  order  to  understand  criminal  conduct. 
Such  conduct  is,  in  a  sense,  an  example  of  failure  to  cope  suc- 
cessfully with  the  realities  of  life  as  conditioned  by  the  existing 
social  regime.  Failure  of  this  sort  is  due  sometimes  to  the  traits 
of  the  individual,  sometimes  to  his  social  conditions,  but  usually 
to  a  combination  of  both  of  these  factors.  In  other  words,  both 
the  hereditary  and  the  environmental  factors  must  be  studied  in 
order  to  explain  these  failures.  For  example,  criminal  conduct 
may  be  due  to  the  fact  that  certain  instincts  and  emotions  are 
unusually  strong  or  unusually  weak,  or  that  the  intellect  is 
feeble.  Or  it  may  be  due  to  the  fact  that  the  environment  has 
not  furnished  the  original  nature  of  the  criminal  the  education 
and  discipline  needed  by  every  individual  to  become  fitted  for 
life  in  society. 

Types  of  Mental  Abnormality 

Many  classifications  of  the  types  of  mental  abnormality 
have  been  made,  and  in  the  present  stage  of  the  study  of  this 
subject  it  is  difficult  to  devize  one  which  is  satisfactory  from  a 
scientific  point  of  view.^    But  for  practical  purposes  the  follow- 

^  Op.  cii.,  p.  265. 

^  I  have  discussed  mental  abnormality  at  greater  length  in  my  book  en- 
titled Poverty  and  Social  Progress,  New  York,  1916.  See  especially  Chapter  V 
on  the  "Pathology  of  the  Mind." 


THE   MENTAL  BASIS   OF  CRIMINALITY  147 

ing  classification  will  serve,  even  though  its  divisions  are  not 
entirely  mutually  exclusive,  and  it  can  be  criticized  in  other 
ways  from  a  scientific  point  of  view.  (In  this  classification  I 
am  omitting  the  types  of  mentality  which  are  abnormal  in  the 
sense  of  being  much  above  the  average,  such  as  genius,  since 
these  types  are  of  little  significance  for  criminal  conduct.) 

1.  Amentia. 

2.  Dementiar^ 

3.  Insanity. 

4.  Neuroses. 

5.  Alcoholism,  drug  habits,  etc.,  due  to  abnormal  appetites. 
Amentia  is  due  to  subnormal  cerebral  development.     That 

is  to  say,  the  brain  never  develops  fully,  so  that  the  mentality 
is  always  seriously  deficient.  Dementia  is  due  to  cerebral  dis- 
solution. That  is  to  say,  after  the  brain  has  developed  it  de- 
generates, thus  giving  rise  to  mental  deficiency.  Bolton  indi- 
cates the  neural  basis  of  these  two  types  of  mental  deficiency 
when  he  says  that  "the  essential  physical  basis  of  mental  dis- 
ease consists,  on  the  one  hand,  in  an  imperfect  development  of 
the  cell-laminae  of  the  cortex  which  is  of  the  nature  of  a  true 
sub-evolution,  and  on  the  other  of  degrees  of  decrease  of  the 
cell-laminae  which  are  of  the  nature  of  a  true  involution  or 
dissolution,  since  such  decrease  in  depth  takes  place  in  the  con- 
verse order  to  that  in  which  the  cell-laminae  developed  during 
the  period  of  normal  growth."  ^  In  this  passage  Bolton  is  re- 
ferring, on  the  one  hand,  to  amentia,  and,  on  the  other  hand, 
to  dementia. 

Insanity  is  a  rather  vague  and  therefore  difficult  word  to 
define.  It  obviously  indicates  the  absence  of  sanity.  But  it 
does  not  include  the  abnormal  mental  states  which  constitute 
amentia,  though  it  may  accompany  amentia.  Tredgold  defines 
insanity  as  "  the  clinical  manifestation  of  a  disturbance  or  per- 
version of  neuronic  function,  which  may  or  may  not  terminate 
in  degeneration."  ^  According  to  this  definition  insanity  is  a 
derangement  of  thinking  and  conduct  due  to  a  pathological  state 
of  the  nervous  system  which  may  degenerate  and  give  rise  to 
dementia.  Bolton  defines  as  a  necessary  precursor  of  dementia 
what  he  calls  "mental  confusion,"  which  includes  "the  mental 

*  J.  S.  Bolton,  The  Brain  in  Health  and  Disease,  London,  1914,  p.  37. 

*  A.  F.  Tredgold,  Menial  Deficiency  {Amentia),  New  York,  1914,  p.  9. 


148  CRIMINOLOGY 

symptoms  which  occur  in  association  with  certain  pathological 
states  of  the  cortical  neurones  which  may  be  followed  by  the 
recovery  or  by  a  more  or  less  extensive  dissolution  of  these 
elements."  ^ 

Both  of  these  authorities  apparently  think  that  insanity 
may  exist  without  dementia,  but  that  insanity  may  develop 
into  dementia.  In  the  latter  case,  also,  it  goes  without  say- 
ing, the  insanity  still  remains;  for  it  is  the  name  for  the 
functional  disturbance  which  arises  as  a  result  of  a  pathological 
neural  state,  which  may  consist  of  neuronic  degeneration  or 
may  be  merely  a  more  or  less  temporary  neural  disturbance. 
It  is  a  technical  neurological  question  as  to  whether  or  not 
neuronic  degeneration  always  is  present  in  a  case  of  insanity. 
There  are  many  different  kinds  of  insanity,  some  of  which  are 
prone  to  lead  to  criminal  conduct. 

The  neuroses  are  more  or  less  general  neuropathic  states 
which  may  or  may  not  accompany  the  abnormal  mental  states 
which  have  so  far  been  mentioned.  Four  neuroses  have  been 
distinguished  and  described,  though  their  nature  is  still  rather 
obscure.  They  are  epilepsy,  neurasthenia,  hysteria,  and  psy- 
chasthenia.  These  neuroses  under  certain  conditions  and  in 
various  ways  lead  to  criminal  conduct. 

There  are  many  abnormal  habits  such  as  alcoholism,  mor- 
phinism, and  other  drug  habits.  Whenever  a  person  uses  a 
narcotic  or  stimulant  to  excess,  an  abnormal  habit  exists.  Con- 
sequently, there  can  be  as  many  such  habits  as  there  are  nar- 
cotics and  stimulants.  The  habit  may  consist  in  the  excessive 
use  of  tea,  coffee,  tobacco,  alcohol,  morphine,  opium,  cocaine, 
chloral,  belladonna,  hashish,  bromides,  chloroform,  ether,  etc. 
The  habit  itself  is  not  a  mental  disease.  Nor  does  it  necessarily 
indicate  the  presence  of  a  mental  disease.  This  depends  upon 
how  the  habit  was  acquired.  A  person  may  acquire  one  of  these 
habits  as  a  result  of  environmental  influences,  without  having 
a  previous  morbid  mental  basis.  But  after  acquiring  the  habit 
the  excessive  use  of  the  stimulant  or  narcotic  may  and  in  many 
cases  does  cause  a  pathological  neural  condition,  which  in  turn 
gives  rise  to  a  mental  disease. 

In  other  cases  the  acquisition  of  the  habit  is  preceded  by  a 
morbid  mental  and  neural  condition  which  proves  to  be  a  good 
*  Op.  cit.,  pp.  138-9. 


THE   MENTAL   BASIS   OF  CRIMINALITY  I49 

basis  upon  which  the  habit  can  grow.  Just  what  this  condition 
is  we  cannot  ascertain  exactly.  But  presumably  the  nerve  cen- 
ters are  sensitive  in  such  a  way  or  to  such  a  degree  that  the 
stimulant  or  the  narcotic  gives  an  unusual  amount  of  satisfac- 
tion. Consequently,  when  the  subject  makes  the  acquaintance 
of  the  stimulant  or  narcotic,  it  arouses  in  him  a  desire  and  crav- 
ing far  surpassing  that  of  the  normal  person,  who  desires  it  only 
to  a  moderate  degree  or  not  at  all.  Failure  to  overcome  this 
craving  results  in  the  establishment  of  the  habit,  which  is  certain 
to  accentuate  the  morbid  mental  and  neural  condition  of  the 
victim  of  the  habit.  These  habits  are  frequently  regarded  as 
being  in  themselves  criminal.  However  this  may  be,  they  often 
lead  to  criminal  conduct. 

The  Mental  Inadaptability  of  the  Criminal 

The  traits  characteristic  of  criminals  at  all  times  and  places 
are  of  such  a  nature  as  to  lead  these  individuals  to  violate  the 
laws,  and  thus  to  incur  the  penalties  for  such  violations.  In 
other  words,  they  are  persons  who  are  not  well  adapted  to  their 
environment,  and  therefore  do  not  harmonize  with  it.  They  are 
unable  to  adapt  themselves  to  the  existing  customs,  standards, 
etc.,  of  society.  Some  of  these  individuals  cannot  adjust  them- 
selves to  the  existing  social  order,  but  might  be  able  to  adjust 
themselves  to  another  kind  of  society.  Other  criminals  are  con- 
stitutionally incapable  of  adapting  themselves  to  any  kind  of 
social  system,  thus  constituting  a  universal  type  of  criminal. 

There  is  a  variety  of  reasons  for  the  lack  of  social  adaptability 
of  the  individuals  belonging  to  this  universal  criminal  type.  It 
is  determined  immediately  by  the  mental  traits  of  the  individual. 
But  many  different  combinations  of  mental  traits  lead  to  this 
lack  of  adaptability,  and  it  is  frequently  difl5cult  to  analyze  the 
combination  in  a  specific  case. 

The  first  type  is  of  those  who  cannot  adapt  themselves  to  the 
existing  social  regime  because  they  believe  it  to  be  wrong,  but 
who  probably  could  not  adapt  themselves  to  any  kind  of  social 
regime.  This  may  be  due  to  the  fact  that  they  have  enough 
intelligence  to  discern  the  defects  in  the  existing  regime,  but  they 
lack  self  restraint  because  of  an  impetuosity  of  temperament 
which  leads  them  to  act  upon  their  belief.    Or  it  may  be  due  to 


150  CRIMINOLOGY 

an  intellectual  instability  combined  with  a  general  instability 
of  character  which  makes  it  difl&cult  for  them  to  adapt  themselves 
to  any  orderly  system.  Or  it  may  be  a  combination  of  intel- 
lectual activity  and  instability  with  these  other  traits  which 
leads  them  sometimes  to  commit  crimes  or  to  act  in  a  manner 
which  is  regarded  by  society  as  immoral,  though  they  themselves 
regard  it  as  good. 

We  need  not  discuss  here  to  what  extent  their  conduct 
is  socially  harmful  and  to  what  extent  it  is  socially  useful. 
This  question  will  be  discussed  in  the  last  part  of  this  book. 
So  far  as  their  beliefs  are  concerned,  they  are  similar  to  many 
other  persons  who  see  faults  in  the  existing  social  regime 
and  would  like  to  have  them  corrected.  But  these  persons, 
whether  it  be  on  account  of  lack  of  courage,  or  for  reasons  of 
personal  expediency,  or  because  they  do  not  believe  that  such 
conduct  will  help  to  bring  about  these  changes,  do  not  commit 
criminal  acts. 

This  type  includes  not  only  the  persons  who  are  guilty  of 
political  crimes  against  the  government,  but  also  those  who 
commit  offenses  against  the  law  and  violate  the  prevailing 
conventional  standard  of  morality,  such  as  labor  agitators,  suf- 
fragettes, socialists,  anarchists,  neo-Malthusians,  free  love  ad- 
vocates, religious  agitators,  and  all  others  who  violate  existing 
legal  and  moral  conventions  in  the  interest  of  a  principle  or  of  a 
social  movement.  Some  of  these  offenders  would  doubtless 
become  law-abiding  if  the  changes  they  advocate  came  to 
pass.  But  others  of  them,  who  are  of  a  restless  nature,  would 
probably  continue  to  agitate  and  to  rebel,  even  if  their  present 
ends  were  attained. 

This  type  is  of  a  highly  specialized  kind  which  rarely  if  ever  is 
numerous,  and  which  should  be  sharply  distinguished  from  the 
criminals  in  general.  The  vast  majority  of  criminals  either 
meditate  very  little  or  not  at  all  upon  the  morality  of  their  con- 
duct, or  frankly  regard  it  as  immoral.  Despite  this  fact  they  are 
impelled  into  criminal  conduct  either  by  their  mental  traits  or 
by  the  forces  of  the  environment.  Let  us  see  what  some  of  the 
types  amongst  them  are,  simplifying  these  types  more  than  in 
real  life  for  purposes  of  study. 

A  person  may  become  criminal  because  of  abnormal  features 
in  his  instinctive  makeup.    This  happens  either  because  certain 


THE   MENTAL   BASIS   OF   CRIMINALITY  151 

instincts  are  unusually  strong,  or  because  they  are  unusually 
weak.  For  example,  if  the  inborn  pugnacious  tendency  is  ab- 
normally strong,  it  may  lead  to  numerous  acts  of  violence.  Or 
if  the  parental  instincts  are  weak,  it  may  lead  to  neglect  of  off- 
spring. If  there  is  such  a  thing  as  an  acquisitive  instinct,  as 
some  psychologists  think,  it  might,  if  unusually  strong,  lead  to 
theft. 

In  similar  fashion  a  person  may  become  criminal  because  of 
abnormal  features  in  his  affective  makeup.  For  example,  if 
the  feelings  connected  with  reproduction,  sex,  etc.,  are  unusually 
strong,  they  may  lead  to  crimes  of  passion.  If  these  feelings  are 
unusually  weak,  the  individual  will  lack  sympathetic  feelings 
and  will  not  be  inhibited  from  inflicting  pain  upon  other  persons. 

The  situation  with  respect  to  intelligence  is  somewhat  differ- 
ent. The  intelligence  has  no  moral  significance  in  itself.  But 
a  strong  intelligence  is  not  so  likely  to  be  associated  with  these 
abnormalities  of  the  instinctive  and  affective  traits.  A  defect  of 
the  nerve  centers  which  control  the  instinctive  and  affective 
processes  is  also  likely  to  be  a  defect  of  the  nerve  centers  which 
control  the  intellectual  processes.  A  strong  intelligence  is  able 
to  comprehend  social  standards  and  their  justification,  though, 
as  we  have  seen,  in  some  cases  it  will  knowingly  and  intention- 
ally violate  these  standards  because  it  does  not  approve  of  them. 
A  weak  intelligence,  on  the  contrary,  is  likely  to  be  associated 
with  these  instinctive  and  affective  abnormalities.  Furthermore, 
it  is  more  difficult  for  the  weak  intelligence  to  comprehend  social 
standards  and  to  see  their  justification.  Consequently,  the 
person  of  weak  intelligence  is  prone  to  fall  into  immoral  and 
criminal  conduct. 

Mental  Defect  and  Moral  Deficiency 

When  impairment  of  the  intellect  gives  rise  to  immoral  and 
criminal  conduct,  it  is  called  moral  imbecility,  or  moral  insanity, 
or  moral  blindness.  This  condition  is  frequently  described  as 
if  it  is  due  to  an  impairment  of  a  distinct  moral  sense.  But  in- 
asmuch as  no  inborn  moral  sense  exists,  moral  deficiency  can- 
not be  a  distinct  abnormal  type  or  morbid  entity.  Moral  im- 
becility or  moral  insanity  can  only  be  due  to  a  disability  of  the 
intellect,  or  of  some  other  part  of  the  mental  makeup,  of  such  a 


152  CRIMINOLOGY 

nature  that  it  is  difficult  or  impossible  for  the  patient  to  under- 
stand moral  ideas  and  to  appreciate  moral  distinctions. 

We  must,  however,  distinguish  between  moral  insanity  and 
moral  imbecihty,  because  this  distinction  has  great  practical 
significance.  Insanity  is  a  mental  derangement  which  arises 
after  birth,  though  it  may  be  traced  back  in  part  to  pre-natal 
conditions.  Many  kinds  of  insanity  give  rise  to  moral  defective- 
ness. The  moral  imbeciles  are  persons  born  mentally  defective 
who  tend  towards  immoral  and  criminal  conduct.  They  are 
found  in  all  of  the  grades  of  the  mentally  defective,  so  that  there 
are  moral  idiots,  moral  imbeciles,  and  moral  morons. 

Tredgold  has  suggested  that  the  moral  imbeciles  be  called 
amorcdes,  and  that  this  type  of  mental  deficiency  be  called 
amoralia}  Such  deficiency  probably  characterizes  the  mental 
condition  of  a  large  proportion  of  those  who  become  criminal 
owing  to  personal  traits.  This  theory  has  been  held  by  some 
criminologists  in  the  past,  as,  for  example,  Lombroso,  and  it  is 
interesting  to  note  that  several  recent  investigations  reveal  a 
rather  high  percentage  of  aments  among  criminals. 

In  order  to  avoid  the  possibility  of  misunderstanding  it  may 
be  well  to  call  attention  specifically  to  the  fact  that  criminal 
conduct  may  result  from  abnormal  and  pathological  mental  con- 
ditions where  there  is  no  intellectual  incapacity.  For  example, 
this  will  happen  when  there  is  no  impairment  of  the  higher  asso- 
ciation centers,  but  when  criminal  conduct  results  from  impair- 
ment of  the  sympathetic  nervous  system.  Persons  who  are  ob- 
viously of  high  intellectual  capacity  sometimes  commit  crimes  of 
passion.  Whether  or  not  these  persons  are  insane  depends  upon 
the  definition  of  the  word  insanity,  which  is  at  best  an  extremely 
vague  term. 

We  can  now  see  that  man's  moral  nature,  like  the  rest  of  his 
mental  makeup,  is  determined  by  his  instinctive,  affective,  and 
intellectual  traits,  and  his  experience  and  training  in  life.  Con- 
sequently, moral  deficiency  may  be  due  to  abnormality  in  any 
one  of  these  traits.  For  example,  it  may  be  due  to  inability  to 
grasp  the  meaning  of  moral  ideas  and  standards.  Or  it  may  be 
due  to  abnormally  strong  impulses  which  cannot  be  restrained. 
Or  it  may  be  due  to  abnormally  weak  restraining  powers. 

^  A.  F.  Tredgold,  Mental  Deficiency  {Amentia),  London,  1914,  "Table  of 
Synonyms"  in  the  Appendix. 


THE  MENTAL  BASIS   OF  CRIMINALITY  I53 

This  excessive  strength  or  weakness  may  be  due  to  abnormally 
strong  or  abnormally  weak  instinctive  tendencies  and  emotional 
states. 

Much  immorality  and  criminality  is  due  to  training  and  force 
of  circumstances.  But  in  any  case  where  moral  deficiency  is  not 
due  merely  to  the  immediate  environment  and  training,  but  is 
due  at  least  in  part  to  congenital  traits,  it  is  due  to  abnormality 
in  at  least  a  part  of  the  mental  makeup.^  Consequently,  the 
so-called  born  criminal,  of  which  there  are  several  types,  may  be 
a  moral  imbecile,  or  he  may  have  inherited  abnormalities  which 
impel  him  almost  irresistibly  towards  certain  kinds  of  criminal 
conduct.  The  insane  criminal  is  obviously  laboring  under  a 
mental  disability,  and  there  are  almost  as  many  kinds  of  insane 
criminality  as  there  are  types  of  insanity.  The  criminal  by 
passion  may  commit  his  crime  owing  to  peculiarities  of  his  sym- 
pathetic nervous  system. 

The  Social  Maladjustment  of  the  Criminal 

It  is  now  clear  in  what  sense  it  is  true  that  the  criminal  class 
is  at  all  times  and  places  made  up  in  part  of  persons  who  can- 
not adapt  themselves  to  organized  society.  But  I  should  like 
to  reiterate  that  the  difiference  between  these  persons  and  man- 
kind in  general  is  only  one  of  degree.  No  person  can  become 
perfectly  adapted  to  the  social  system  under  which  he  lives. 
Every  one  violates  moral,  legal,  and  social  conventions  to  a 
certain  extent,  and  every  person  is  abnormal  and  pathological  to 
a  certain  extent.  And  this  failure  to  become  perfectly  adapted 
is  by  no  means  entirely  the  fault  of  the  individual,  but  in  part 
of  the  social  system,  because  there  has  never  yet  been  and  prob- 
ably never  will  be  a  system  of  society  which  is  perfect.  However, 
most  individuals  acquire  enough  knowledge  and  develop  enough 
self  control  to  enable  them  to  get  along  fairly  well  with  their 
fellows,  and  to  avoid  violations  of  the  conventions  of  society  so 
flagrant  in  their  nature  as  to  bring  upon  them  severe  pen- 
alties. 

'  The  English  Mental  Deficiency  Act  defines  "moral  imbeciles,"  by  which 
it  apparently  means  all  of  the  moral  defectives,  as  "persons  who  from  an 
early  age  display  some  permanent  mental  defect  coupled  with  strong  vicious 
or  criminal  propensities  on  which  punishment  has  had  little  or  no  deterrent 
effect." 


154  CRIMINOLOGY 

But  there  always  remains  the  group  which  for  various  reasons, 
is  incapable  of  adjusting  itself  successfully  to  the  social  order. 
Consequently,  its  members  become  stigmatized  as  criminals. 
It  is  impossible  to  state  accurately  what  proportion  of  the  crim- 
inal class  this  group  constitutes.  It  includes  all  of  the  so-called 
born  criminals,  and  all  of  the  criminals  who  are  aments.  It 
probably  includes  a  goodly  proportion  of  the  criminal  class, 
perhaps  more  than  half. 

In  addition  to  those  whose  physical  and  mental  traits  make 
it  difficult  or  impossible  for  them  to  adapt  themselves  to  any 
social  order,  there  are  always  some  persons  who  have  difficulty 
in  adjusting  themselves  to  the  existing  order,  but  might  become 
adjusted  to  a  different  one.  This  group,  however,  is  not  likely 
to  become  large,  because  as  it  grows  in  size  it  exerts  more  and 
more  influence  to  change  the  existing  order.  For  example, 
in  many  communities  in  this  country  it  has  been  regarded  as 
immoral  and  frequently  penalized  by  the  law  to  do  certain  things 
on  Sunday.  So  that  the  theaters  have  been  closed  and  the  play- 
ing of  games  in  public  has  been  prohibited  by  Sabbatarian  legis- 
lation. But  as  the  result  of  the  incoming  of  many  Europeans 
who  are  accustomed  to  the  so-called  "Continental"  Sunday, 
and  who  have  refused  to  regard  these  acts  as  wrong,  these  laws 
have  been  repealed  or  have  become  dead  letters  in  many  places, 
and  public  sentiment  has  gradually  changed,  so  that  it  is  no 
longer  generally  regarded  as  immoral  and  criminal  to  do  these 
things. 

In  the  last  place,  there  are  the  persons  who  are  not  abnormal 
or  pathological  to  an  unusual  degree,  but  who  become  criminal 
through  the  forces  of  the  environment.  This  may  be  due  to 
lack  of  education  which  makes  it  difficult  for  them  to  make  their 
way  in  the  world.  On  account  of  this  lack  of  education  they 
have  not  been  taught  moral  ideas  early  in  life,  or  have  been 
taught  perverted  moral  ideas.  Inasmuch  as  there  is  no  inborn 
moral  sense,  it  is  difficult  for  any  one  who  has  not  had  this  early 
training  to  understand  moral  ideas  or  to  appreciate  moral  dis- 
tinctions, because  the  associations  have  not  become  established 
in  their  brains  which  are  necessary  for  the  proper  functioning 
of  the  so-called  moral  faculties.  From  this  group  are  recruited 
some  of  the  professional  criminals. 

There  are  many  other  environmental  factors  which  give  rise 


THE   MENTAL   BASIS   OF   CRIMINALITY  1 55 

to  crime.  Many  of  the  occasional  criminals  are  led  to  commit 
crimes  by  external  circumstances,  and  in  spite  of  their  more  or 
less  normal  character.  In  many  of  these  cases  these  circum- 
stances have  been  brought  into  being  by  poverty  and  its  attend- 
ant evils.  These  environmental  factors  for  crime  are  described 
elsewhere  in  this  book. 


CHAPTER  XI 
CRIMINAL  AMENTS 

Characteristic  traits  of  criminal  aments  —  The  measurement  of  mental 
ability  —  The  extent  of  criminal  amentia. 

In  recent  years  much  study  has  been  devoted  to  the  aments, 
or  the  feebleminded,  as  they  are  ordinarily  called.  This  study 
has  revealed  the  fact  that  some  of  these  feebleminded  folk  are 
morally  deficient  in  the  sense  that  they  are  intellectually  in- 
capable of  grasping  the  meaning  of  moral  ideas,  frequently  lack 
the  self  control  and  will  power  to  restrain  themselves  from  acts 
which  are  harmful  to  themselves  or  to  others,  and  for  other 
reasons  connected  with  their  mental  defectiveness  are  fre- 
quently led  into  criminal  conduct.  Furthermore,  numerous 
criminological  investigations  have  revealed  the  presence  of 
many  of  these  aments  among  criminals.  So  that  there  is  reason 
to  believe  that  among  the  criminal  aments  are  many  of  the  so- 
called  "born"  or  "instinctive"  criminals,  which  are  included  in 
several  of  the  classifications  of  criminal  types.  ^ 

In  similar  fashion,  these  investigations  have  furnished  con- 
clusive evidence  in  support  of  the  opinion  that  the  "moral 
imbecility"  or  "moral  insanity"  of  Lombroso  and  other  crim- 

^Healy  expresses  the  opinion  that  the  "born"  criminal  is  to  be  found 
among  the  mentally  abnormal:  "The  gist  of  the  whole  situation  concerning 
'born  criminals'  is  that  they  are  individuals  who  definitely  belong  in  the 
scientific  categories  of  mental  defect  and  mental  aberration.  They  show,  by 
reason  of  early  teaching,  of  environmental  opportunities,  of  developed  habit 
of  mind,  or  such  physical  conditions  as  abnormal  sexuality,  a  very  definite 
tendency  to  criminalism.  They  are  primarily  mentally  abnormal,  and 
secondly,  criminalistic."  (William  Healy,  The  Individual  Delinquent,  Boston, 
191S,  p.  782.) 

Dr.  Healy's  book  on  the  individual  delinquent  is,  unfortunately,  badly 
written  and  organized,  and  deals  almost  exclusively  with  young  delinquents. 
But  it  contains  a  vast  amount  of  valuable  information  concerning  many 
individual  criminals,  and  is  very  suggestive  of  the  diversity  of  criminal 
types,  and  the  great  variety  and  complexity  of  the  causes  of  their  criminality. 


CRIMINAL  AMENTS  1 57 

inologists  is  not  a  distinct  morbid  entity,  but  is  one  phase  of 
feeblemindedness.^  It  is,  therefore,  probable  that  the  strong 
resemblance  of  "bom  criminality"  to  "moral  imbecility,"  if 
not  indeed  their  identity,  which  was  suspected  by  Lombroso, 
may  be  due  to  the  fact  that  both  of  them  are  manifestations  of 
feeblemindedness. 

Characteristic  Traits  of  Criminal  Aments 

Aments,  or  feebleminded  persons,  become  criminal  because, 
by  reason  of  their  intellectual  disability,  they  are  unable  to  make 
their  way  in  the  economic  and  other  activities  of  society,  and 
because,  if  not  kept  under  custodial  care,  they  are  likely  to  run 
foul  of  the  law.  Their  intellectual  disability  reveals  itself  not 
only  by  their  blundering  into  crime,  but  also  by  the  blundering 
way  in  which  they  commit  their  crimes. 

Goring,  who  has  observed  many  criminals,  was  impressed  by  this 
fact  and  states  it  as  follows:  — "  Unteachable,  unemployable,  a 
nuisance  to  themselves  and  everyone  else,  without  a  place  in  the 
economic  regime  of  a  law-abiding  community,  the  position  of  un- 
supervised mental  defectives  is  extremely  forlorn,  and  can  hardly  fail, 
in  the  long  run,  to  compel  them  to  swell  disproportionately  the  crim- 
inal ranks.  But  probably  the  chief  source  of  the  high  degree  of  rela- 
tionship between  weak-mindedness  and  crime  resides  in  the  fact  that 
the  criminal  thing  which  we  call  criminality,  and  which  leads  to  the 
perpetration  of  many,  if  not  of  most,  anti-social  offences  to-day,  is  not 
inherent  wickedness,  but  natural  stupidity.  At  any  rate,  we  need  only 
study  the  penal  record  of  habitual  criminals  to  realize  fully  .that  the 
one  characteristic  of  the  offences  of  90  per  cent,  of  the  150,000  persons 
convicted  to  prison  every  year  —  the  one  characteristic,  apart  from 
their  intolerableness  in  a  well-ordered  society,  is  the  incredible  stupid- 
ity of  these  offences."  ^ 

But  the  aments  are  likely  to  become  criminals  not  only  be- 
cause of  their  intellectual  disability,  but  also  on  account  of 
abnormalities  in  other  parts  of  their  mental  makeup.  The  sub- 
normal cerebral  development  characteristic  of  amentia  is  very 

^  Healy  expresses  the  same  opinion  as  follows:  "Our  own  conclusion,  to 
repeat,  is  simply,  that  if  the  'moral  imbecile'  exists  who  is  free  from  all  other 
forms  of  intellectual  defect,  he  must  indeed  be  a  rara  avis."    (Op.  cit.,  p.  788.) 

*  C.  Goring,  The  English  Convict,  London,  1913,  p.  262. 


158  CRIMINOLOGY 

likely  to  affect  the  instincts  and  feelings  as  well  as  the  intellect. 
Consequently,  some  of  the  instincts  may  be  excessively  strong 
or  excessively  weak,  and  the  same  may  be  true  of  certain  of  the 
emotions.  In  some  of  these  cases  the  instinctive  and  affective 
abnormality  is  prone  to  stimulate  criminality.  For  example, 
the  emotions  of  anger  and  of  jealousy  may  be  unusually  strong, 
thus  leading  to  crimes  of  violence;  or  the  parental,  sexual,  and 
other  emotions  which  form  the  basis  of  the  sympathetic  nature 
of  man  may  be  weak,  thus  making  the  individual  indifferent  to 
the  interests  and  welfare  of  his  fellows.  On  account  of  the  ex- 
treme complexity  of  the  human  mind  it  is  very  difficult  to  dis- 
tinguish between  and  segregate  for  purposes  of  study  the  in- 
stinctive, affective,  and  intellectual  elements.  But  in  view  of  the 
close  inter-relations  between  the  different  parts  of  the  mind,  there 
is  good  reason  to  believe  that  in  most  if  not  all  cases  of  amentia 
all  of  these  parts  are  affected. 

The  following  graphic  descriptions  of  the  moral  deficiency 
which  arises  from  amentia  indicate  how  it  leads  to  crime.  The 
first  statement  exaggerates  somewhat  the  immorality  of  these 
defectives,  except  in  the  extreme  cases. 

Sherlock  has  characterized  the  moral  defectives  in  the  following 
words:  ^— 

"Clinically  the  signs  of  moral  feeble-mindedness  are,  in  a  typical 
case,  those  of  unqualified  viciousness,  by  which  is  meant  that  the 
activities  of  the  individual  are  designed  to  satisfy  his  present  desires 
without  any  reference  to  the  bearing  of  such  a  course  on  himself  or 
others.  Judged  by  the  accepted  standard  of  morals,  he  is  purely 
selfish.  He  has  no  affection  for  his  relatives,  no  sense  of  personal  or 
family  honour,  and  no  reverence  for  family  ties;  and  he  will  commit 
an  offence  against  a  member  of  his  family  as  readily  as  against  a 
stranger:  there  is  thus  not  even  a  rudiment  of  the  social  instinct.  In 
his  relations  with  the  world  at  large,  he  shows  an  entire  lack  of  sym- 
pathy with  man  and  beast,  and  may  even  be  actively  cruel.  Altruism 
is  entirely  foreign  to  his  nature;  he  is  untruthful,  obscene,  lustful, 
unstable,  restless,  devoid  of  discretion,  and  unregulated  as  to  his 
imagination.  He  makes  no  friends,  and  is  averse  from  doing  any  work; 
he  knows  neither  gratitude,  shame,  nor  repentance,  and  is,  as  Maier 
found  in  a  well-marked  case,  so  completely  impervious  to  reproaches 
and  appeals  that  they  produce  in  him  no  obvious  emotional  reaction, 
whether  as  regards  facial  expression,  bodily  movement,  the  pulse  and 
respiration  rates,  or  speech.    To  the  law  he  is  known  as  thief,  train- 


CRIMINAL  AMENTS  1 59 

wrecker,  incendiary,  or  murderer;  or  as  addicted  to  assaults,  and 
sexual  offences  of  all  kinds."  ^ 

Another  writer  on  the  feebleminded  has  stated  the  relation  be- 
tween feeblemindedness  and  criminality  in  the  following  language:  — 

"Every  feeble-minded  person  is  a  potential  criminal.  This  is  nec- 
essarily true  since  the  feeble-minded  lacks  one  or  the  other  of  the 
factors  essential  to  a  moral  life  —  an  appreciation  of  right  and- wrong, 
and  the  power  of  control.  If  he  does  not  know  right  and  wrong,  does 
not  really  appreciate  this  question,  then  of  course  he  is  as  likely  to  do 
the  wrong  thing  as  the  right.  Even  if  he  is  of  sufficient  intelligence  and 
has  had  the  necessary  training  so  that  he  does  know,  since  he  lacks  the 
power  of  control  he  is  unable  to  resist  his  natural  impulses. 

"Whether  the  feeble-minded  person  actually  becomes  a  criminal 
depends  upon  two  factors,  his  temperament  and  his  environment.  If 
he  is  of  a  quiet,  phlegmatic  temperament  with  thoroly  weakened 
impulses  he  may  never  be  impelled  to  do  anything  seriously  wrong.  In 
this  case  when  he  cannot  earn  a  living  he  will  starve  to  death  unless 
philanthropic  people  provide  for  him.  On  the  other  hand,  if  he  is  a 
nervous,  excitable,  impulsive  person  he  is  almost  sure  to  turn  in  the 
direction  of  criminality.  Fortunately  for  the  welfare  of  society  the 
feeble-minded  person  as  a  rule  lacks  energy.  But  whatever  his  tem- 
perament, in  a  bad  environment  he  may  still  become  a  criminal,  the 
phlegmatic  temperament  becoming  simply  the  dupe  of  more  in- 
telligent criminals,  while  the  excitable,  nervous,  impulsive  feeble- 
minded person  may  escape  criminality  if  his  necessities  are  provided 
for,  and  his  impulses  and  energies  are  turned  in  a  wholesome  direc- 
tion." 2 

Tredgold  emphasizes  in  particular  the  impulsiveness  and  lack  of 
will  power  of  the  criminal  aments.  Speaking  of  the  impulses  of  moral 
defectives,  he  says  that  "they  take  the  form  of  an  impulse  to  steal 
(kleptomania);  to  set  things  on  fire  such  as  commons,  heaths,  hay- 
stacks, and  houses  (pyromania);  to  mutilate  horses  and  cattle;  and, 
by  no  means  rarely,  to  commit  homicide.  It  is  perhaps  a  moot  point 
whether  one  should  regard  cases  of  this  kind  as  dependent  upon  a  dis- 
order of  association  and  ideation,  or  upon  a  defect  of  will.  It  may  be 
that  the  impulses  have  such  an  impelling  power  that  no  ordinary 
volition  would  be  capable  of  withstanding  them,  and  that  conse- 
quently they  should  be  placed  in  a  separate  category,  under  the  head- 
ing of  'morbid  impulses.'  On  the  other  hand,  they  are  frequently 
resisted,  and  when  this  does  not  occur  it  may  be  owing  to  a  defect  of 
will.    However  this  may  be,  there  is  no  doubt  that  recurrent  impulses 

*  E.  B.  Sherlock,  The  Feeble-Minded,  London,  1911,  pp.  1Q2-3. 
'H.  H.  Goddard,  Feeble-Mindedness,  New  York,  1914,  pp.  514-515. 


l6o  CRIMINOLOGY 

of  this  kind  occur  periodically  and  with  tolerable  frequency  in  certain 
aments,  and  that  the  inability  to  resist  them  brings  such  persons 
within  the  class  of  incorrigible  moral  defectives.  It  occasionally  hap- 
pens that  the  impulse  is  not  of  this  definite  character,  there  being 
simply  a  general  explosiveness  which  causes  the  individual  to  kick 
over  the  traces  on  any  and  every  occasion.  Lastly,  it  is  to  be  noted 
that  neither  the  presence  of  morbid  impulses  nor  of  defective  will  are 
incompatible  with  a  normally  developed  moral  sense."  ^ 

Classifications  have  been  devized  of  the  aments  who  are  likely 
to  become  criminals.  For  example,  Sherlock  classifies  the  moral 
defectives  as  (i)  the  unstable,  (2)  the  mendacious,  (3)  the  sexual, 
(4)  the  contentious.^  Tredgold  classifies  them  as  (i)  the  morally 
perverse  or  habitual  criminal  type,  (2)  the  facile  type,  (3)  the 
explosive  type.^  He  describes  the  first  type  in  his  classification 
as  follows:  —  "In  my  experience  they  commit  crimes,  not  be- 
cause they  are  deficient  in  will  or  are  passionate  and  excitable, 
like  those  to  be  presently  considered,  but  because  they  are  either 
possessed  of  ineradicable  antisocial  propensities,  or  really  cannot 
appreciate  the  difference  between  right  and  wrong.  They  are, 
in  fact,  fundamentally  lacking  in  moral  sense,  and  this,  together 
with  the  defect  of  judgment  which  is  always  present,  causes 
them  to  be  absolutely  irreformable."  ^ 

Tredgold  characterizes  the  second  type  in  the  following 
words:  —  "In  this  type  of  morally  defective  person  the  com- 
mission of  crimes  and  acts  of  immorality  does  not  appear  to  be 
so  much  due  to  any  want  of  appreciation  of  the  difference  be- 
tween right  and  wrong,  or  to  any  pronounced  criminal  propensi- 
ties, as  to  the  fact  that  the  individuals  are  so  lacking  in  will 
power  as  to  be  unable  to  steer  a  right  course  against  resistance; 
they  must  go  with  the  stream,  and  hence  the  extent  of  their 
criminality  is  dependent  upon  the  nature  of  their  environ- 

1  A.  F.  Tredgold,  Menial  Deficiency  {Amentia),  London,  1914,  pp.  318-319. 
Tredgold  also  recognizes  a  type  of  defective  will  characterized  by  "a  general 
inertia."  The  moral  defective  possessing  this  type  of  will  "is  facile,  he  sim- 
ply follows  the  line  of  least  resistance,  and  is  swayed  this  way  or  that  ac- 
cording to  the  happenings  of  the  moment.  It  is  obvious  that  the  behaviour 
of  such  an  individual  will  be  entirely  dependent  upon  the  nature  of  his 
environment."    (P.  317.) 

*  Op.  oil.,  pp.  193-196. 
'  Op.  cit.,  pp.  326-337. 

*  Op.  cit.,  p.  326. 


CRIMINAL  AMENTS  l6l 

ment."  ^  The  third  or  "explosive"  type  is  characterized  by 
sudden,  irresistible  impulses  "closely  resembling  the  motor 
convulsions  of  an  epileptic."  ^  This  type  is  described  in  the 
above  quotation  from  Tredgold. 

The  Measurement  of  Mental  Ability 

Let  us  now  consider  briefly  the  extent  of  amentia  among 
criminals.  In  order  to  measure  its  extent  accurately  two  things 
are  requisite.  In  the  first  place,  a  scientifically  exact  and  reli- 
able test  of  mental  ability  must  be  devized.  In  the  second 
place,  the  sample  group  which  is  examined  must  not  be  a  selected 
one,  but  must  be  made  up  of  individuals  who  have  been  taken 
at  random  from  the  criminal  class  in  general,  and  who  therefore 
truly  represent  the  whole  class. 

The  first  of  these  conditions  is  only  partially  fulfilled  as  yet. 
During  the  last  few  years  much  effort  has  been  devoted  by 
psychologists  to  devizing  satisfactory  mental  tests.  One  of 
the  first  devized  is  the  famous  Binet-Simon  test,  which  has  been 
several  times  revized  by  its  authors  and  by  others.^  This  test 
was  devized  largely  as  the  result  of  study  of  school  children 
and  of  abnormals  in  institutions.  It  classifies  mental  defectives 
by  comparing  their  mental  ability  with  that  of  children,  and 
places  them  in  the  same  mental  age  groups  with  children.  Adults 
who  display  a  mentality  like  that  of  infants  from  one  to  three 
years  of  age  are  classified  as  idiots,  those  who  display  a  mental- 
ity like  that  of  children  from  three  to  seven  years  of  age  are 
classified  as  imbeciles,  and  those  who  display  a  mentality  like 
that  of  children  from  seven  to  twelve  years  of  age  are  classified 
as  feebleminded.  According  to  some  of  the  psychologists  who 
have  used  this  test,  children  under  ten  years  of  age  who  are 

»  Op.  cit.,  pp.  iii-3i2. 

2  Op.  cit.,  p.  334. 

'  See  articles  by  A.  Binet  and  T.  Simon  in  L'annes  psychologique,  Vols.  XI 
(1905),  XIV  (1908),  XVII  (1911).  Also  see  English  translations  of  their 
works  entitled  A  Method  of  Measuring  the  Development  of  the  Intelligence  of 
Young  Children,  Chicago,  1913;  Mentally  Defective  Children,  London,  1914. 
For  revisions  of  the  Binet-Simon  test  see  H.  H.  Goddard,  The  Binet-Simon 
Measuring  Scale  of  Intelligence,  Vineland,  N.  J.,  191 1;  L.  M.  Terman  and 
H.  G.  Childs,  A  Tentative  Revision  and  Extension  of  the  Binel-Simon  Measur- 
ing Scale  of  Intelligence,  in  the  Jour,  of  Educational  Psychology,  Feb.  to  May, 
1912. 


l62  CRIMINOLOGY 

mentally  more  than  two  years  behind  their  age  are  feeble- 
minded, also  children  of  ten  years  of  age  and  over  who  are 
mentally  more  than  three  years  behind  their  age. 

Another  mental  test,  which  is  of  special  interest  to  us  because 
it  was  devized  in  the  course  of  a  study  of  delinquents,  is  the 
Healy  test.^  Other  mental  tests  which  might  be  mentioned  are 
the  de  Sanctis  test,^  the  Yerkes-B ridges  test,^  etc. 

The  second  condition  has  not  been  fulfilled  at  all,  and  indeed 
can  never  be  attained.  It  will  never  be  possible  to  draw  in- 
dividuals at  random  from  the  criminal  class  in  general  for  pur- 
poses of  examination.  The  only  persons  who  can  be  examined 
are  those  in  prisons,  reformatories,  and  elsewhere,  who  have 
fallen  under  the  restraint  of  the  law.  These  groups  are  highly 
selected  with  respect  to  mental  defect,  because  criminal  aments 
are  much  more  likely  to  get  caught  by  the  law  than  other  crimi- 
nals. Furthermore,  criminal  aments  are  more  likely  to  become 
segregated  in  reformatory  and  similar  institutions  than  other 
types  of  criminals.  So  that  it  is  to  be  expected  that  the  per- 
centage of  mental  defectives  in  these  groups  will  always  be 
much  higher  than  among  criminals  in  general.  The  most  that 
can  be  done  to  obviate  this  difiiculty  is  to  compute  roughly 
the  degree  to  which  these  groups  are  selected  with  respect  to 
mental  defectiveness,  and  then  discount  accordingly  in  estimat- 
ing the  extent  of  mental  defectiveness  in  the  criminal  class  in 
general. 

The  fact  that  these  two  conditions  have  not  been  fulfilled 
doubtless  accounts  for  the  wide  variation  between  the  estimates 
which  have  so  far  been  made,  and  the  exaggerated  size  of  some 
of  these  estimates.  Different  tests  have  been  used  and  they  have 
been  applied  by  persons  who  have  varied  greatly  in  their  com- 
petency to  use  them.  The  degree  to  which  the  different  groups 
have  been  selected  has  varied  greatly,  but  this  factor  has  in 
many  cases  not  been  recognized  by  the  investigator.  Before 
the  present  state  of  confusion  with  respect  to  this  question  can 

1  W.  Healy  and  Grace  M.  Femald,  Tests  for  Practical  Mental  Classifica- 
tion, in  The  Psychological  Monographs,  Vol.  XIII,  No.  2,  March,  191 1. 

^  S.  de  Sanctis,  Mental  Development  and  the  Measure  of  the  Level  of  Intelli- 
gence, in  the  Jour,  of  Educational  Psychology,  Vol.  II  (191 1),  pp.  498-507. 

'  R.  M.  Yerkes,  J.  W.  Bridges  and  Rose  S.  Hardwick,  A  Point  Scale  for 
Measuring  Mental  Ability,  Baltimore,  19 15. 


CRIMINAL  AMENTS  163 

be  removed,  it  will  be  necessary  to  devize  a  satisfactory  stand- 
ardized mental  test,  and  to  compute  as  carefully  as  possible 
the  degree  of  selection  in  each  group  examined.^ 

The  Extent  of  Criminal  Amentia 

1  shall  now  summarize  briefly  several  investigations  of  the 
extent  of  amentia  among  criminals. 

The  British  Royal  Commission  on  the  Care  and  Control  of 
the  Feeble-minded,  whose  report  was  pubHshed  in  1908,  gathered 
a  few  random  and  rather  unreliable  statistics  with  respect  to 
the  number  of  mentally  defective  persons  in  the  British  penal 
institutions.  For  example,  the  medical  officer  of  the  Penton- 
ville  prison  expressed  the  opinion  that  "there  are  not  less  than 
20  per  cent  of  the  prisoners  who  show  signs  of  mental  ineffi- 
ciency." ^  The  medical  inspector  of  the  Prison  Commission 
expressed  the  opinion  that  in  the  local  prisons  at  least  3  per 
cent  of  the  prison  population  should  be  returned  as  mentally 
defective.^  Such  opinions  are  of  little  value  unless  accompanied 
by  definite  figures  of  the  number  of  persons  examined,  and  a 
description  of  the  kind  of  examination  or  test  applied. 

It  was  also  ascertained  by  the  Commission  that  ''sixteen 
per  cent,  of  the  patients  at  the  State  criminal  lunatic  asylum 
at  Broadmoor  were  'cases  of  congenital  or  infantile  mental 
deficiency  —  the  proportion  of  both  sexes  being  about  the 
same.' "  ■*  The  medical  investigators  of  the  Commission  visited 
local  prisons,  casual  wards,  shelters,  etc.,  and  saw  2,353  prisoners. 
Of  these  242,  or  10.28  per  cent,  were  found  to  be  mentally  defec- 
tive.^ 

Goring  in  his  investigation  of  English  convicts  studied  their 
mental  capacity.  It  does  not  appear  from  his  report  that  he 
used  rigorous  psychological  tests.    With  respect  to  mental  de- 

^  One  investigator  states  the  present  situation  as  follows: — "We  have  at 
present  no  reliable  means  of  diagnosing  the  grade  of  intelligence  of  the  aver- 
age reformatory  case.  Work  now  being  done  by  a  number  of  different 
psychologists  will  probably  in  the  near  future  provide  mental  tests  that  will 
mark  a  big  advance  over  present  methods.  A  refinement  of  clinical  pro- 
cedure may  also  add  to  the  solution  of  this  problem."  (F.  Kuhlmann,  The 
Mental  Examination  of  Reformatory  Cases,  in  the  Jour.  Crim.  Law,  Vol.  V, 
No.  5,  Jan.,  1915,  pp.  666-674.) 

2  Report  of  the  Commission,  London,  1908,  Vol.  VIII,  p.  123. 

*  Op.  cit.,  p.  124.  *  Op.  cit.,  p.  125.  *  Op.  cit.,  p.  131. 


164  CRIMINOLOGY 

fectiveness  among  criminals  he  came  to  the  following  conclu- 
sion:—  "Accordingly,  against  the  .45  per  cent,  of  defectives 
in  the  general  population,  the  proportion  of  mentally  defective 
criminals  cannot  be  less  than  10  per  cent.,  and  is  probably  not . 
greater  than  20  per  cent.  It  is  clear  that  criminals,  as  a  class, 
are  highly  differentiated  mentally  from  the  law-abiding  classes."^ 
He  computed  the  following  correlation  coeflScient  between  crim- 
inality and  mental  deficiency  among  the  convicts  he  studied:  — 
"The  correlation  coefficient  with  criminality  of  alcoholism  is  .39, 
of  epilepsy  is  .26,  of  sexual  profligacy  is  .31,  and  of  mental  de- 
ficiency is  .64.  From  the  high  value  of  the  last  coefficient  we 
would  presume  that,  if  reducible  to  one  condition,  it  is  mental 
defectiveness  which  would  most  likely  prove  to  be  the  common 
antecedent  of  the  alcoholism,  epilepsy,  insanity  and  sexual 
profligacy."  ^ 

Goring  also  studied  the  percentage  of  mental  defectives 
among  the  persons  committing  the  different  kinds  of  crimes 
in  the  group  of  convicts  covered  by  his  investigation.  He  pre- 
sents his  results  in  the  following  table:  —  ^ 

Percentage    or    LIental    Defectives    Among    Persons    Committing 

Criminal  Offenses,  and  in  the  General  Population 

(948  Convicts) 

Firing  of  stack 52  9 

Wilful  damage,  including  maiming  of  animals 22 . 2 

Arson 16.7 

Rape  (child) 15 .8 

Robbery  with  violence 15.6 

Unnatural  (sexual)  offences 14  ■  3 

Blackmail 14 . 3 

Fraud 12.8 

Stealing  (and  poaching) 11 . 2 

Burgkry 10.  o 

Murder  and  murderous  intent : 9.5 

Rape  (adult) 6.7 

Receiving 5.1 

Manslaughter 5.0 

Coining 3.3 

Wounding;  intent  to  wound,  striking  superior  officer 2.9 

Embezzlement,  forgery,  fraudulence  as  trustee,  bigamy,  performing  il- 
legal surgical  operation  0.0 

General  population S 

^  C.  Goring,  op.  cit.,  p.  255.  *  Op.  cit.,  p.  262. 

*  Op.  cit.,  p.  258. 


CRIMINAL  AMENTS  165 

Goring  comments  upon  this  table  as  follows:  —  "It  is  particularly 
interesting  to  note  that  the  percentage  of  mentally  defective  mur- 
derers is  nearly  twice  as  great  as  the  percentage  of  persons  convicted 
of  other  forms  of  personal  violence;  that  receivers  of  stolen  goods  and 
coiners  are  on  the  average  much  more  intelligent  than  thieves;  that 
stack-firing,  which  is  a  crime  of  passion,  associated  more  highly  than 
any  other  with  imbecility,  must  be  distinguished  from  other  forms  of 
arson,  which  are  crimes  perpetrated  by  persons  of  much  higher  grade 
of  intelligence,  and  for  motives  of  personal  gain ;  that  indecent  assaults 
upon  children,  and  unnatural  sexual  offences,  are  related  to  weak- 
mindedness  much  more  than  are  crimes  of  rape  upon  adults;  and  that 
embezzlement,  forgery,  and  all  kinds  of  fraud  are  peculiarly  intelligent 
crimes,  absent  in  a  marked  manner  from  the  records  of  mentally 
defective  persons."  ^ 

Tredgold  has  studied  this  problem  from  a  somewhat  different 
point  of  view.  Instead  of  studying  the  mental  defectives  among 
the  criminals,  he  has  studied  those  displaying  criminal  and 
vicious  tendencies  among  the  mentally  defective.  Inasmuch 
as  he  has  described  rigorous  physiological  and  mental  tests  as 
being  his  methods  of  investigation,  we  have  reason  to  believe 
that  his  results  are  worthy  of  much  weight.  He  states  his  con- 
clusions as  follows:  — 

"It  seems  likely  that  the  nearest  approximation  to  the  true  in- 
cidence will  be  gained  by  approaching  the  question  from  another 
standpoint,  and  considering  what  proportion  of  the  mentally  de- 
fective evince  pronounced  criminal  and  anti-social  tendencies.  My 
investigations  in  Somersetshire  showed  that  this  proportion  was  10  per 
cent.,  which  corresponds  to  a  total  of  about  13,000  moral  defectives 
in  England  and  Wales  in  the  year  1906.  The  total  number  of  persons 
tried  for  indictable  offences  during  the  preceding  year  was  61,463;  on 
the  assumption  that  20  per  cent,  of  these  were  mentally  deficient,  the 
number  of  these  latter  would  be  a  little  over  12,000.  We  shall,  there- 
fore, probably  not  be  far  wrong  in  saying  that  the  number  of  persons 
in  England  and  Wales  coming  within  the  legal  definition  of  moral  de- 
fect was  between  12,000  and  13,000  in  1906."  ^ 

Goddard  has  prepared  a  list  of  sixteen  reformatories  and  in- 
stitutions for  delinquents  in  the  United  States  in  which  the 
nimiber  of  mental  defectives  has  been  estimated.    According 

^  Op.  eft.,  p.  258. 

*  A.  F.  Tredgold,  op.  cit.,  p.  325. 


1 66  CRIMINOLOGY 

to  these  estimates,  the  percentages  of  defectives  in  these  institu- 
tions range  from  28  per  cent  to  89  per  cent,  the  higher  percent- 
ages preponderating,  only  three  of  them  being  under  50  per 
cent.  From  this  Ust  he  draws  the  following  conclusion:  —  "A 
glance  will  show  that  an  estimate  of  50  per  cent  is  well  within 
the  limit.  From  these  studies  we  might  conclude  that  at  least 
50  per  cent,  of  all  criminals  are  mentally  defective."  ^  He  also 
states  with  respect  to  prostitution  that  "many  competent 
judges  estimate  that  50  per  cent  of  prostitutes  are  feeble- 
minded." ^  In  a  later  work  he  reiterates  the  above  conclusion 
by  saying  that  "the  best  estimate  and  the  result  of  the  most 
careful  studies  indicate  that  somewhere  in  the  neighborhood 
of  50  per  cent  of  all  criminals  are  feeble-minded."  ^ 

Goddard  indicates  that  Binet  tests  were  used  in  five  of  the 
institutions  in  his  list,  but  there  is  no  indication  as  to  how  rigor- 
ous were  the  tests  used  in  the  other  institutions.  Furthermore, 
there  is  no  indication  as  to  the  extent  to  which  the  inmates  of 
each  institution  were  admitted  as  a  result  of  an  intentional 
or  unintentional  process  of  selection  with  respect  to  mental 
capacity.  The  number  of  persons  examined  in  each  case  is  not 
known.  For  all  of  these  reasons  Goddard's  sweeping  conclu- 
sion is  wholly  unwarranted  and  unjustifiable.'* 

Goddard  is  of  the  opinion  that  most  of  the  feebleminded  criminals 
have  inherited  their  mental  defectiveness.  He  says  that  "careful 
studies  have  shown  beyond  the  peradventure  of  doubt  that  at  least 
two-thirds  of  these  mental  defectives  have  inherited  their  defect;  in 
other  words,  that  they  belong  to  strains  of  the  human  family  whose 
intelligence  hes  below  that  which  is  required  for  the  performance  of 
their  duties  as  citizens."  ^  Consequently,  he  thinks  that  the  so-called 
"born"  criminal  is  in  reality  the  feebleminded  criminal.  "The 
hereditary  criminal  passes  out  with  the  advent  of  feeble-mindedness 
into  the  problem.  The  criminal  is  not  born;  he  is  made.  The  so-called 
criminal  type  is  merely  a  type  of  feeble-mindedness,  a  type  misunder- 

^  H.  H.  Goddard,  Feeble-Mindedness,  New  York,  1914,  p.  9. 

2  Op.  cit.,  p.  15. 

^  The  Criminal  Imbecile,  New  York,  1915,  p.  106. 

*  It  is  much  to  be  regretted  that  Goddard  displays  a  tendency  to  exag- 
gerate greatly  the  extent  of  amentia.  It  is  all  the  more  surprizing  in  view 
of  the  fact  that  he  apparently  uses  careful  mental  tests  in  his  own  investiga- 
tions. 

'  The  Criminal  Imbecile,  p.  106. 


CRIMINAL  AMENTS  167 

stood  and  mistreated,  driven  into  criminality  for  which  he  is  well 
fitted  by  nature.  It  is  hereditary  feeble-mindedness  not  hereditary 
criminality  that  accounts  for  the  conditions.  We  have  seen  only  the 
end  product  and  failed  to  recognize  the  character  of  the  raw  mate- 
rial." 1 

Healy  made  a  careful  study  of  one  thousand  young  repeated 
offenders.  Among  them  he  found  89  morons  or  high-grade 
feebleminded,  and  8  imbeciles.^  He  comments  upon  these 
results  as  follows:  —  "As  beyond  peradventure  feebleminded, 
we  found  about  10  per  cent,  but  the  figure  will  be  increased  as 
some  of  the  younger  in  the  lower  groups  fail  to  advance  with 
age."  ^  As  to  the  criminal  feebleminded  he  speaks  as  follows:  — 
"Just  what  percentage  of  delinquents  are  feebleminded  appears 
to  be  a  matter  of  perennial  interest,  but  well-founded  statistics, 
even  if  obtained  in  particular  places,  may  not  be  applicable  to 
different  situations.  There  can  be  no  doubt  that  separate  re- 
formatory or  prison  populations  if  tested  would  show  from  10 
to  30  per  cent  or  even  more,  to  be  feebleminded.  .  .  .  No 
essential  purpose  is  subserved  by  exaggerated  statements  con- 
cerning the  proportions  which  might  be  found  in  court  work, 
or  in  various  penal  institutions."  ^ 

Healy  also  found  in  the  same  group  of  1,000  young  re- 
peated offenders  81  of  subnormal  mentality,  namely,  persons  pos- 
sessing considerably  more  educability  than  the  feebleminded; 
an^  69  suffering  from  psychosis,  under  which  term  he  includes 
insanity.'^ 

Hickson  examined  245  boys  in  the  Boys'  Court  in  Chicago  and 
found  that  207,  or  84.49  P^^  cent,  were  distinctly  subnormal 
morons.®  He  used  Binet-Simon  and  other  mental  tests.  But  the 
individuals  he  examined  formed  a  highly  selected  group  in  which 
a  high  degree  of  mental  defectiveness  was  to  be  expected. 

Bowers  examined  100  recidivists,  or  incorrigible  habitual 
criminals,  in  the  Indiana  State  Prison  and  found  that  23  were 

*  Feehle-Mindedness,  p.  8. 

*  W.  Healy,  The  Individual  Delinquent,  New  York,  p.  130. 
'  Op.  cit.,  p.  140. 

*  O/*.  aV.,  p.  447. 
»  Op.  cit.,  p.  139. 

*  W.  J.  Hickson,  The  Defective  Delinquent,  in  the  Jour.  Crim.  Law,  Vol.  V, 
No.  3,  Sept.,  1914,  pp.  397-403- 


1 68  CRIMINOLOGY 

feebleminded,  12  were  insane,  38  were  constitutionally  inferior, 
17  were  psychopaths,  and  10  were  epileptics.^  He  does  not 
state  what  tests  he  used.  It  is  evident  that  this  was  a  highly 
selected  group. 

Bronner  examined  505  boys  and  girls  in  the  Detention  Home 
of  the  Juvenile  Court  of  Cook  County  in  Chicago,  using  Binet- 
Simon  and  other  tests.  Her  conclusion  is  as  follows:  —  "On  the 
basis  of  a  study  of  more  than  500  cases  in  a  group  as  little  selected 
as  is  possible  to  obtain,  we  find  the  percentage  of  feebleminded 
to  be  less  than  10  per  cent.,  while  the  group  of  those  normal  in 
ability  exceeds  90  per  cent."  ^ 

Spaulding  examined  400  women  in  the  Massachusetts  Re- 
formatory for  Women  at  South  Framingham,  Mass.,  using 
Binet-Simon,  Healy,  and  other  tests.  She  found  that  16.8  per 
cent  were  feebleminded,  and  26.8  per  cent  showed  mental  sub- 
normahty  (slight  mental  defect).  Furthermore,  she  found  that 
15.2  per  cent  gave  a  history  of  epilepsy,  ii.o  per  cent  showed 
manifestations  of  hysteria,  4.0  per  cent  had  at  some  time  been 
confined  in  hospitals  for  the  insane,  and  7.7  per  cent  showed 
marked  neuropathic  or  psychopathic  tendencies.  The  ab- 
normal mental  cases  represented  37.2  per  cent  of  the  whole 
number.^ 

Williams  examined  215  boys  in  the  Whittier  State  School  in 
California,  using  the  Stanford  Revision  of  the  Binet-Simon 
Measuring  Scale  of  Intelligence.  He  found  that  32  percent  of 
these  215  delinquent  boys  were  feebleminded,  and  21  per  cent 
on  the  borderline.^ 

Haines  examined  1,000  delinquent  young  boys  and  girls  — 
671  boys  and  329  girls  —  at  the  Bureau  of  Juvenile  Research, 
Columbus,  Ohio.  He  found  that,  judged  by  the  Binet-Simon 
test,  57  per  cent  were  feebleminded;  by  the  Yerkes-Bridges  test, 

1  P.  E.  Bowers,  The  Recidivist,  in  the  Jour.  Crim.  Law,  Vol.  V,  No.  3, 
Sept.,  1914,  pp.  404-415- 

"  Augusta  F.  Bronner,  A  Research  on  the  Proportion  of  Mental  Defectives 
among  Delinquents,  in  the  Jour.  Crim.  Law,  Vol.  V,  No.  4,  Nov.,  1914, 
pp.  561-568. 

*  Edith  R.  Spaulding,  The  Results  of  Mental  and  Physical  Examinations  of 
Four  Hundred  Women  Offenders,  in  the  Jour.  Crim.  Law,  Vol.  V,  No.  5, 
Jan.,  1915,  pp.  704-717- 

■•  J.  H.  Williams,  Intelligence  and  Delinquency,  in  the  Jour.  Crim.  Law, 
Vol.  VI,  No.  5,  Jan.,  1916,  pp.  696-705. 


CRIMINAL  AMENTS  169 

29  per  cent  were  feebleminded.  He  concluded  finally  that  24 
per  cent  of  these  1,000  cases  were  undoubtedly  feebleminded.^ 

Rossy  examined  300  criminals  in  the  Massachusetts  State 
Prison'  by  the  revized  Yerkes-B ridges  point  scale.  They  ranged 
from  sixteen  to  eighty-six  years  of  chronological  age.  Of  these 
22  per  cent  (66  cases)  were  feebleminded;  9.6  per  cent  were  on 
the  borderline  between  amentia  and  normal  mentality;  ^.^  per 
cent  were  presumably  psychotic;  and  65  per  cent  were  "not  di- 
agnosed." Of  the  66  feebleminded  criminals,  24  had  committed 
sex  offenses,  22  had  committed  crimes  against  property,  and  20 
had  committed  crimes  against  life.^ 

It  is  obvious  that  the  estimates  of  the  prevalence  of  amentia 
among  criminals  which  have  been  cited  vary  greatly  in  their 
reliability.  Some  of  them  are  incredibly  high,  as,  for  example, 
Goddard's  minimum  estimate  of  50  per  cent.  There  is  reason 
to  believe  that  some  of  these  exaggerated  estimates  are  due  to 
defects  in  the  Binet-Simon  test,  which  has  been  widely  used. 
This  test  seems  to  be  fairly  accurate  up  to  ten  years  of  age,  or 
thereabouts.  But  it  is  very  defective  above  that  age.  For  this 
reason  it  is  not  well  adapted  for  examining  many  of  the  inmates 
of  reformatories,  and  tends  to  exaggerate  the  estimate  of  the 
number  of  mental  defectives  in  reformatories. 

But  the  more  reliable  investigations  cited  resulted  in  much 
lower  estimates.  For  example,  in  a  highly  selected  group  Healy 
found  10  per  cent  who  were  unquestionably  feebleminded.  In 
a  group  which  was  probably  somewhat  less  selected  Bronner 
found  less  than  10  per  cent  who  were  feebleminded.  In  a  highly 
selected  group  Spaulding  found  16.8  per  cent  who  were  feeble- 
minded. Two  psychologists  have  devized  a  method  of  diagnos- 
ing feeblemindedness  which  they  have  applied  to  seven  investi- 
gations of  delinquents  including  2,836  cases  in  all.  They  arrived 
at  an  estimate  of  6.6  per  cent  feebleminded  among  these  delin- 
quents, which  estimate  is  professedly  tentative.^ 

^  T.  H.  Haines,  Mental  Examination  of  Juvenile  Delinquents,  Publication 
No.  7,  Ohio  Board  of  Administration,  Dec,  1915. 

*  C.  S.  Rossy,  Report  on  the  First  Three  Hundred  Cases  Examined  at  the 
Massachusetts  StAte  Prison,  Mass.  State  Board  of  Insanity,  Bulletin  17, 
Jan.,  1916. 

'  R.  Pintner  and  D.  G.  Paterson,  A  Psychological  Basis  for  the  Diagnosis 
of  Feeble-Mindedness,  in  the  Jour.  Crim,  Law,  Vol.  VII,  No.  i,  May,  19 16, 
PP- 32-55- 


ryo  CRIMINOLOGY 

It  is  evident,  therefore,  that,  while  the  high  estimates  are  man- 
ifestly wrong,  it  is  not  yet  possible  to  make  any  reliable  estimate 
of  the  number  of  criminal  aments.  The  number  may  range 
somewhere  between  5  and  10  per  cent,  but  this  is  not  much 
more  than  a  guess.  In  view  of  this  great  uncertainty  it  is  ad- 
visable not  to  arrive  at  any  definite  scientific  conclusions,  nor 
to  take  any  practical  measures  upon  the  basis  of  any  of  these 
estimates.^ 

However,  the  investigations  so  far  made  indicate,  to  say  the 
least,  that  amentia  is  much  more  prevalent  among  criminals 
than  it  is  among  the  population  at  large.  In  another  work  I 
have  made  a  rough  minimum  estimate  that  0.4  per  cent  of  the 
population  of  this  country  are  mentally  defective.^  If  we  assume 
that  one-half  of  i  per  cent  of  the  total  population  are  aments, 
and  that  a  minimum  of  5  per  cent  of  the  criminals  are  aments, 
it  is  evident  that  there  are  at  least  ten  times  as  many  aments 
proportionally  among  the  criminals  than  in  the  general  popula- 
tion. This  rough  estimate  is  sufficient  to  indicate  the  signif- 
icance of  mental  defectiveness  for  criminality. 

Among  other  references  dealing  with  the  subject  of  the  application  of 
mental  tests  may  be  mentioned  the  following:  G.  M.  Whipple,  Manual  of 
Mental  and  Physical  Tests,  Baltimore,  1914-1915,  2  vols.;  J.  E.  W.  Wallin, 
Experimental  Studies  of  Mental  Defectives,  Baltimore,  191 2;  E.  B.  Huey, 
Backward  and  Feeble-Minded  Children,  Baltimore,  1912. 

^  One  investigator  has  stated  the  dangers  of  hasty  conclusions  and  actions 
in  the  following  words:  "The  present-day  tendency  to  play  fast  and  loose 
with  such  vague  and  undefined  concepts  as  'defective  children,'  'mental 
deficiency,'  'mental  defect,'  'defectiveness,'  ' subnormality,'  and  'feeble- 
mindedness,' 'moronity'  and  'criminal  imbecility,'  when  applied  to  men- 
talities of  X  (years  of  age)  and  over  and  to  base  vital  practical  action  on 
diagnoses  based  on  such  vague  concepts  is  not  only  inexcusable  but  it  con- 
stitutes a  positive  bar  to  sane  progress  in  the  study  of  the  problem  of  mental 
deviation.  A  recent  writer  recommends  that  adequate  provision  be  pro- 
vided '  by  the  state  for  the  permanent  custodial  care  of  all  committed  cases 
of  mental  defect,  whether  or  not  they  have  a  court  record.'  Another  recent 
writer  maintains  that  'there  is  little  doubt  that  the  majority  of  criminals 
are  mentally  defective.'  It  would  be  difficult  indeed  to  find  any  person 
who  is  free  from  every  kind  of  'mental  defect,'  or  who  is  not  to  some  ex- 
tent 'mentally  defective.'  On  the  basis  of  the  sweeping  recommendation 
and  generalization  above  it  would  be  possible  to  report  almost  any  person 
as  a  case  of  'mental  defect,'  and  thereby  secure  his  life-long  incarceration 
in  a  custodial  institution."  (J.  E.  W.  Wallin,  Who  is  Feeble-Minded?,  in 
the  Jour.  Crim.  Law,  Vol.  VI,  No.  5,  Jan.,  1916,  p.  715.) 

^  Poverty  and  Social  Progress,  p.  61. 


CHAPTER  XII 
PSYCHOPATHIC  CRIMINALS 

The  borderline  between  amentia  and  normal  mentality  —  The  borderline 
between  amentia  and  dementia  and  insanity  —  Demented  and  insane 
criminals  —  The  influence  of  physiological  crises  —  Influence  of  bad 
habits,  the  neuroses,  traumatic  injuries,  abnormal  suggestibility,  men- 
tal conflicts,  etc.  —  Summary  of  mental  traits  prevalent  among  crim- 
inals. 

The  psychopathic  type  of  criminal  includes  all  of  the  crim- 
inals who  display  more  or  less  mental  abnormality,  but  who  are 
not  aments. 

The  Borderline  Between  Amentia  and  Normal  Mentality 

As  I  have  already  stated,  there  is  no  hard  and  fast  line  be- 
tween amentia  and  normal  mentality.  Consequently,  there  are 
some  individuals  on  or  near  the  borderline  who  cannot  be  clas- 
sified either  as  feebleminded  or  as  mentally  normal.  Several 
groups  may  be  distinguished  among  these  individuals. 

For  example,  there  are  the  persons  who  are  feebleminded  in 
most  respects,  but  who  have  special  ability  along  one  line.  To 
this  group  belongs  the  mental  defective  who  has  unusual  musical 
or  calculating  ability.  Sometimes  a  special  ability  aids  the  de- 
fective, and  sometimes  it  is  an  obstacle  to  him  and  may  lead 
him  into  crime.  He  may  possess  good  insight  into  his  own  de- 
fects which  helps  him  to  avoid  dangers.  If  he  possesses  good 
motor  ability,  it  may  help  him  in  an  industrial  way.  On  the 
other  hand,  if  his  general  mental  defectiveness  leads  him  into 
crime,  his  good  motor  ability  may  aid  him  in  his  criminal  career, 
and  thus  become  a  drawback.  He  may  possess  unusual  ability 
in  the  use  of  language  which  aids  him  in  lying,  swindling,  fraud- 
ulent litigation,  etc.^ 

1  Healy  calls  this  the  "verbalist"  type  of  mental  defective,  and  comments 
upon  its  significance  as  follows:  "I  know  of  no  class  of  defective  or  abnormal 
individuals  that  is  so  little  xmderstood,  or  who  can  give  so  much  social  trou- 


172  CRIMINOLOGY 

Then  there  are  the  persons  who  are  mentally  normal  in  most 
respects,  but  are  defective  in  one  or  a  few  special  abilities.  For 
example,  an  individual  may  be  lacking  in  language  ability  which 
makes  it  difficult  for  him  to  speak  well,  prevents  him  from  learn- 
ing to  read  and  write,  etc.,  and  thus  places  a  serious  obstacle  in 
the  way  of  a  successful  career.  Or  his  defect  may  be  in  arith- 
metical ability,  motor  ability,  etc.  Still  more  important  for 
criminal  conduct  are  defects  in  judgment,  foresight,  self  control, 
etc.^ 

But  most  representative  of  the  persons  who  cannot  be  clas- 
sified either  as  feebleminded  or  as  mentally  normal  are  the 
borderline  cases  of  individuals  who  have  neither  special  abilities 
nor  special  defects,  but  who  are  slightly  subnormal  in  the  whole 
of  their  mentality  without  being  decidedly  feebleminded.  These 
persons  are  hard  to  detect  because  they  have  no  striking  pecul- 
iarities. Many  crimes  are  committed  by  such  individuals  who 
have  succumbed  to  the  pressure  of  unusually  difficult  circum- 
stances, but  who  might  have  resisted  this  pressure  successfully 
if  they  had  been  fully  normal  mentally.  It  is  probable  that  many 
of  the  occasional  criminals  are  of  slightly  subnormal  mentality,^ 
and  the  same  may  be  true  of  some  of  the  criminals  by  passion. 

Furthermore,  mental  dullness  may  arise  from  physical  con- 
ditions other  than  subnormal  neural  development,  or  from  lack 
of  training,  and  may  simulate  congenital  subnormality.  When- 
ever physical  conditions  are  present  which  can  give  rise  to  men- 
tal dullness,  careful  study  should  be  made  of  any  possible  correla- 
tion between  the  two.  There  are  many  such  physical  conditions, 
among  them  being  anemia;  auto-intoxication;  the  physiological 
effects  of  narcotics,  stimulants,  and  excessive  sex  indulgence; 
traumatic  injuries  to  the  brain  and  other  parts  of  the  nervous 
system;  etc. 

ble  on  account  of  their  not  being  understood,  as  the  mental  defectives  who 
have  language  ability  sufficient  to  make  an  appearance  which  deceives  the 
world  in  general  as  to  their  true  mental  status.  It  is  a  type  which  on  ac- 
count of  the  legal  problems  often  centering  about  them  should  be  understood 
thoroughly  by  all  those  who  have  to  deal  with  human  individuals  under 
the  law."    (W.  Healy,  The  Individual  Delinquent,  Boston,  1915,  p.  473.) 

1  Cf.  W.  Healy,  op.  cit.,  Bk.  11,  Chap.  17. 

*  Lombroso  probably  had  this  group  in  mind  when  he  was  describing  the 
"criminaloid,"  which  he  makes  a  sub-class  of  the  occasional  criminal.  (See 
his  L'homme  criminel,  Vol.  II.) 


psychopathic  criminals  1 73 

The   Borderline   Between   Amentia  and   Dementia  and 

Insanity 

In  addition  to  the  borderline  cases  between  amentia  and 
normal  mentality,  there  are  the  borderline  cases  between  amentia 
on  the  one  hand  and  dementia  and  insanity  on  the  other  hand. 
Various  names  have  been  given  to  this  type  of  mental  abnormal- 
ity, such  as  constitutional  inferiority,  psychopathic  inferiority 
(psycho pathische  Minderwertigkdten) ,  psychopathic  constitution, 
psychopathic  personality,  degeneracy  (degenerescence  superieur), 
morbid  personality,  etc.^ 

Healy  has  described  the  traits  of  the  constitutionally  inferior  with 
reference  to  crime  in  the  following  words:  —  "The  general  character- 
istic of  the  constitutional  inferior  is  abnormal  reaction  to  some  of  the 
ordinary  stimuli  of  life.  Unusual  emotional  reactions  are  almost 
universal  in  the  members  of  this  class.  They  are  often  egocentric, 
selfish,  irritable,  very  suggestible,  easily  fatigued  mentally.  Some- 
times they  are  possessed  by  an  abnormal  feeling  of  impotence.  They 
may  be  slightly  defective  in  intelligence  or  have  light,  specialized  de- 
fects of  ability,  but  very  often  tests  reveal  neither  defect  nor  peculiar- 
ity. Indeed  some  members  of  this  class  may  be  regarded  as  dis- 
tinctly bright,  even  geniuses,  although  weak  in  power  to  meet  the 
steady  demands  of  the  world.  Description  of  such  anomalous  per- 
sonages has  often  found  its  place  in  literature.  Not  the  least  feature 
of  the  symptomatology  of  this  class  of  individuals  is  the  ease  with 
which  they  fall  into  anti-social  conduct.  The  attraction  towards  mis- 
deeds is  too  much  for  their  weak  inhibitory  powers  in  many  a  case,  or 
their  very  feeling  of  social  impotence  leads  to  their  taking  the  easiest 
path.  The  ranks  of  vagabondage,  tramp  life,  as  may  well  be  imagined, 
are  recruited  in  considerable  part  from  this  class."  ^ 

It  is  possible  that  in  this  group  are  to  be  found  most  frequently 
the  individuals  who  display  that  singular  rapprochement  between 
genius  and  insanity  which  has  been  noted  by  many  writers.  At 
any  rate,  the  instability  of  character  of  the  members  of  this 
group  easily  leads  them  into  crime.  ^ 

^  Cf.  C.  P.  Obemdorf,  Constitutional  Abnormality,  in  the  N.  Y.  State  Hos- 
pitals Bulletin,  Vol.  IT,  No.  4,  March,  1910,  pp.  814-826. 

2  W.  Healy,  op.  cit.,  pp.  576-577. 

'  Anderson  has  suggested  a  classification  of  borderline  mental  cases  among 
criminals  which  is  not  entirely  satisfactory.  He  distinguishes  the  following 
three  types:  (i)  The  mental  defective,  by  which  he  seems  to  mean  the  sub- 


174  criminology 

Demented  and  Insane  Criminals 

Let  us  now  consider  dementia  and  insanity  briefly  in  relation 
to  crime.  As  has  already  been  noted  in  Chapter  IX,  dementia  is 
due  to  neuronic  degeneration,  and  gives  rise  to  an  insane  mental 
state.  Probably  in  most  if  not  all  cases  a  congenital  neural 
weakness  furnishes  a  diathesis  for  dementia.  But  whether  a 
congenital  factor  is  always  present,  or  in  some  cases  the  de- 
mentia is  wholly  due  to  acquired  traits,  the  dementia  appears 
when  the  nervous  system  is  subjected  to  an  unusual  strain,  or  is 
in  a  weakened  condition.  For  example,  the  dementia  may  ap- 
pear at  a  time  of  crisis  such  as  adolescence,  when  dementia 
precox  makes  its  appearance,  or  at  the  time  of  the  climacteric, 
when  presenile  dementia  appears,  or  during  old  age,  in  the  form 
of  senile  dementia. 

It  is  not  possible  to  state  with  certainty  whether  or  not  in- 
sanity can  exist  without  dementia.  But  it  is  very  probable  that 
a  state  of  mental  aberration  sufficiently  great  to  justify  calling 
it  insanity  frequently  exists  without  dementia  being  present. 
There  are  many  kinds  of  insanity  which  may  be  classified  in  a 
variety  of  ways.  For  example,  they  may  be  classified  with 
respect  to  their  causes,  such  as  infections,  exhaustion,  poisonings, 
auto-intoxication,  glandular  disturbances  as  in  thyroid  in- 
sanities, traimiatic  injuries,  etc.  Or  they  may  be  classified 
according  to  the  forms  they  take,  such  as  melancholia,  mania, 
paranoia,  circular  psychoses,  hysteria,  neurasthenia,  psychas- 
thenia,  etc.^    These  two  kinds  of  classification  cut  across  each 

normal;  (2)  the  psychopath,  by  which  he  seems  to  mean  the  constitutional 
inferior;  and  (3)  the  delinquent  type  of  mentality,  which  is  "cool  and  cal- 
culating, deliberate,  planning  out  situations  in  advance,  indolent  and  super- 
ficial, very  selfish,  egoistic,  heartless  and  even  cruel  at  times."  The  in- 
dividuals belonging  to  the  third  type  are  reformable  and  their  criminality 
is  due  to  the  fact  that  they  "have  not  had  at  the  proper  stage  of  their  de- 
velopment those  socializing  influences  which  produce  altruistic  tendencies 
that  discipline  the  instincts  and  emotions."  It  is  diflScult  to  imderstand 
why  this  typ^  should  be  regarded  as  a  borderline  type,  since  its  criminality 
is,  apparently,  entirely  acquired  and  not  at  all  innate.  (V.  V.  Anderson, 
A  Classification  of  Borderline  Mental  Cases  amongst  Ojffenders,  in  the  Jour. 
Crim.  Law,  Vol.  VI,  No.  5,  Jan.,  1916,  pp.  689-695. 

*  The  literature  on  mental  diseases  is  very  extensive.  I  will  mention  a 
few  works  dealing  with  dementia,  insanity,  the  neuroses,  abnormal  habits, 
etc.: 

J.  S.  Bolton,  The  Brain  in  Health  and  Disease,  London,  1914. 


PSYCHOPATHIC "  CRIMINALS  1 7  5 

other  at  many  points,  and  are  complementary  to  each  other, 
since  it  is  impossible  to  study  insanity  fully  without  studying 
both  the  causes  and  the  forms  of  insanity.  But  the  forms  of  in- 
sanity are  of  more  direct  and  immediate  importance  for  the 
study  of  crime,  and  I  shall  now  indicate  briefly  how  some  of 
these  forms  of  insanity  lead  to  criminal  acts. 

Dementia  causes  a  weakening  of  mental  ability  which  in  some 
cases  leads  to  criminal  conduct.  Dementia  precox  unfits  a  young 
person  for  a  useful  career.  He  is  incapable  of  holding  a  position, 
and  is  weak  in  the  face  of  temptation.  Consequently,  he  is 
likely  to  be  led  into  a  career  of  crime.  Frequently  he  acquires 
bad  sex  habits,  such  as  masturbation,  and  may  drink  and 
smoke  excessively.  In  some  cases  suicide  is  attempted.  Most 
of  these  things  are  true  of  the  female  as  well  as  the  male 
youthful  dement,  but  the  female  is  more  likely  to  be  led  into 
a  life  of  vice  than  the  male,  and  is  not  so  likely  to  become  a 
criminal. 

Senile  dementia  sometimes  leads  aged  persons,  especially  old 
men,  into  such  offenses  as  petty  stealing;  but  especially  into  sex 
offenses,  such  as  exhibitionism  and  sometimes  even  rape.  De- 
mentia at  other  periods  of  life  may  and  sometimes  does  lead  to 
crime  and  vice,  but  it  probably  has  this  effect  most  frequently 
in  the  young.  However,  even  among  the  young  criminals  it 
does  not  appear  frequently.  Healy  is  sure  that  in  not  more  than 
25  cases,  and  probably  less  than  that  number,  of  1,000  yovmg 
repeated  offenders  which  he  examined  carefully  were  there  any 
symptoms  of  dementia  precox.  ^ 

Paresis,  a  disease  of  the  brain  due  usually  if  not  always  to 
syphilis,  causes  disturbances  of  the  emotional  life  which  may 
give  rise  to  great  irritability,  and  sometimes  leads  to  delusions. 

A.  Church  and  F.  Peterson,  Nervous  and  Menial  Diseases,  Philadelphia, 
1914. 

T.  S.  Clouston,  Unsoundness  cf  Mind,  London,  191 1. 

R.  H.  Cole,  Mental  Diseases,  London,  1913. 

P.  Janet,  The  Major  Symptoms  of  Hysteria,  New  York,  1907. 

E.  Kraepelin,  Lectures  on  Clinical  Psychiatry,  New  York,  1913. 

R.  von  Krafft-Ebing,  Text  Book  on  Insanity,  Philadelphia,  1905. 

A.  Meyer,  The  Anatomical  Facts  and  Clinical  Varieties  of  Traumatic  In- 
sanity, in  the  Am.  Jour,  of  Insanity,  Vol.  LX,  Jan.,  1904,  pp.  373-441. 

E.  Tanzi,  A  Textbook  of  Mental  Diseases,  New  York,  1909. 

1 W.  Healy,  op.  cit.,  p.  594. 


176  CRIMINOLOGY 

These  mental  conditions  are  very  likely  to  result  in  minor 
offenses,  and  sometimes  even  in  serious  crimes.  However, 
paresis  results  in  great  mental  deterioration,  and  usually  leads 
in  course  of  time  to  dementia  paralytica  or  general  paralysis 
which  destroys  the  capacity  for  conduct  of  any  sort,  criminal  or 
otherwise. 

Extreme  melancholia  is  a  form  of  insanity  caused  and  accom- 
panied by  emotional  depression  and  delusions  and  hallucina- 
tions. It  frequently  leads  to  attempts  at  suicide,  and  sometimes 
to  murder  of  the  members  of  the  patient's  family,  setting  fire 
to  the  home,  etc. 

Manic-depressive  insanity  is  the  form  of  insanity  which  per- 
haps most  frequently  leads  to  criminality.  Healy  has  described 
it  and  has  indicated  how  it  has  this  effect  in  the  following  words: 
— "  Sufferers  from  the  excessive  psychomotor  exhilaration, 
always  sooner  or  later  followed  by  abnormal  depression,  which 
characterizes  the  manic  phase  of  manic-depressive  insanity, 
are  sometimes  criminalistic.  Usually  their  disease  is  so  manifest 
that  they  are  taken  care  of  comparatively  early  in  institutions, 
and  consequently  figure  but  little  in  the  courts.  Quarreling, 
fighting,  running  away,  unprovoked  assault,  and  attempts  to 
misrepresent,  are  the  types  of  misdeed  ordinarily  seen  in  con- 
nection with  this  disease.  Anti-social  conduct  is  so  readily 
seen  to  be  a  part  of  the  mental  disorder  that  diagnosis  of  the 
cause  rarely  presents  difficulties."  ^ 

Paranoia  is  a  form  of  insanity  consisting  of  systematized 
delusions  which  always  center  around  the  person  of  the  patient. 
These  delusions  arise  out  of  ideas  of  persecution  or  of  grandeur. 
Apart  from  these  delusions  the  mind  of  the  patient  may  appear 
to  be  normal.  Delusions  of  persecution  are  very  likely  to  lead 
to  retaliatory  acts  for  the  fancied  persecution.  These  acts  may 
be  violent  in  their  nature,  or  they  may  take  the  form  of  fault- 
finding, and  of  litigation.^  Delusions  of  grandeur  are  not  so 
likely  to  lead  to  criminal  acts.  Paranoia  is  a  comparatively 
frequent  cause  of  anti-social  conduct,  and  is  frequently  con- 
cealed under  the  apparently  good  mental  capacity  of  the  para-' 
noiac. 

*  W.  Healy,  op.  cit.,  p.  602. 

^Cf.  B.  Glueck,  The  Forensic  Phase  of  Litigious  Paranoia,  in  the  Jour. 
Critn.  Law,  Vol.  V,  No.  3,  Sept.,  1914,  pp.  371-386. 


psychopathic  criminals  1 77 

The  Influence  of  Physiological  Crises 

In  addition  to  the  well  marked  psychoses  which  characterize 
the  cleariy  defined  insanities,  there  are  other  aberrational  men- 
tal states  which  arise  from  physiological  crises  in  the  life  of  the 
individual,  bad  habits,  neurotic  states,  traumatic  injuries,  etc., 
which  may  lead  to  aberrational  conduct  of  a  criminal  nature. 
In  these  mental  states  the  aberration  is  usually  not  so  great  as 
in  the  well  defined  psychoses,  but  in  some  cases  it  is  quite  as 
great. 

Adolescence  causes  important  changes  in  the  physiological 
and  psychological  traits  of  the  individual,  so  that  the  adolescent 
period  is  a  time  of  stress  and  change.  Especially  important  is 
the  maturing  of  the  sexual  nature  at  this  time  of  life.  Owing  to 
these  changes  the  adolescent  is  likely  to  be  unusually  irritable, 
and  lacking  in  mental  balance  and  self  control.  In  some  cases 
these  conditions  give  rise  to  a  slight,  temporary  mental  aber- 
ration which  does  not  develop  into  dementia,  but  which,  while 
it  lasts,  may  lead  to  3,berrations  of  conduct  of  a  criminal  nature.^ 
Probably  most  of  these  individuals  return  to  normal  as  they 
grow  older. 

Certain  crises  in  the  life  of  woman  in  some  cases  lead  to  slight 
mental  aberration,  and  in  a  few  cases  to  great  mental  aberra- 
tion. These  crises  are  menstruation  (or,  more  strictly  speaking, 
ovulation),  pregnancy,  and  to  a  much  smaller  degree  the  meno- 
pause. During  these  crises  a  woman's  self  control  is  usually 
considerably  lessened,  and  she  is  prone  to  experience  sudden 
impulses  which  she  is  not  always  able  to  restrain.  Frequently 
these  are  impulses  to  commit  acts  which  are  useless  to  her  and 
irrational.  For  example,  almost  all  of  the  shop-lifting  in  stores* 
is  done  by  women.    A  few  of  these  women  may  be  professional 

1  Healy  comments  upon  these  cases  as  follows:  "As  we  have  noted  our 
cases  we  should  say  that  the  most  characteristic  symptom  of  those  who 
showed  temporary  aberrational  troubles  in  adolescence  was  that  of  extreme 
incalculability,  general  mental  incoherence.  The  individual  frequently 
seems  to  be  so  played  upon  by  varying  internal  impulses  and  environmental 
influences  that  conduct  becomes  utterly  irrational.  It  would  be  impossible 
to  say  that  the  behavior  reactions  fall  at  all  within  the  broad  lines  of  any 
typical  psychosis.  Any  one  of  the  new  characteristics,  or  visionary  schem- 
ing, or  irregularity  of  temper,  peculiar  aversions,  the  general  unsettled  feel- 
ings, the  recklessness,  may  be  expressed  with  enough  force  to  be  reckoned  a 
definite  mental  aberration."    (W.  Healy,  op.  cit.,  p.  652.) 


178  CRIMINOLOGY 

thieves.  But  in  the  cases  of  most  of  them  the  thieving  seems  to 
be  due  to  pathological  causes,  for  they  frequently  do  not  need 
what  they  steal,  and  sometimes  steal  things  which  are  unusable. 
A  considerable  proportion  of  these  women  probably  are  psy- 
chopathic or  insane,  and  are  very  likely  to  feel  during  these 
crises  such  impulses  to  steal.  Some  of  them  may  be  entirely 
normal,  but  the  mental  derangement  caused  by  one  of  these 
crises  may  be  sufficient  to  give  rise  to  an  uncontrollable  impulse 
to  steal.  ^ 

Influence  of  Bad  Habits,  the  Neuroses,  Traumatic  In- 
juries, Abnormal  Suggestibility,  Mental  Conflicts,  etc. 

Certain  bad  habits  give  rise  to  aberrational  mental  states 
which  lead  to  criminal  conduct.  The  most  important  of  these 
habits  are  alcoholism,  and  several  drug  habits.  These  habits 
lead  to  anti-social  conduct  in  various  ways,  namely,  by  lessening 
the  power  of  inhibition,  by  stimulating  irresistible  impulses,  by 
giving  rise  to  hallucinations  and  delusions,  and  in  many  other 
ways.^ 

The  neuroses  lead  in  various  ways  to  criminal  conduct.  Epi- 
lepsy is  characterized  by  outbreaks  of  ugly  temper  which  readily 
give  rise  to  anti-social  acts  of  violence.     Furthermore,  this 

^  Cf.  P.  Dubuisson,  Lcs  volcuscs  des  grands  magasins,  in  the  Arch,  d'anth. 
crim.,  Vol.  XVI,  1901,  i:p.  1-20,  341-370. 

Stekel  gives  a  psychoanalytic  explanation  of  these  cases  of  shop-lifting. 
He  says  that  "the  root  of  all  these  cases  of  kleptomania  is  ungratified  sexual 
instinct.  These  women  fight  against  temptation.  They  are  engaged  in  a 
constant  struggle  with  their  desires.  They  would  like  to  do  what  is  forbidden, 
but  they  lack  the  strength.  Theft  is  to  them  a  symbolic  act.  The  essential 
point  is  that  they  do  something  that  is  forbidden,  touch  something  that 
does  not  belong  to  them."  Stekel  also  extends  this  psychoanalytic  explana- 
tion of  pathological  stealing  to  other  forms  of  kleptomania  displayed  by 
men,  children,  etc.  (W.  Stekel,  The  Sexual  Root  of  Klcptotnuma,  in  the 
Jour.  Crim.  Law,  Vol.  II,  No.  2,  July,  191 1,  pp.  239-246.) 

^  Cooper  enumerates  the  principal  psychophysical  defects  of  alcoholic 
inebriates  as  follows:  (i)  Incapacity  to  bear  physical  or  mental  pain;  (2)  De- 
fective moral  sense;  (3)  Defective  sense  of  responsibility;  (4)  Abnormal 
intolerance  or  tolerance  of  alcohol;  (5)  Defective  realization  of  his  own  ab- 
normalities on  the  part  of  the  inebriate;  (6)  Defective  inhibition;  (7)  Defec- 
tive mental  equilibrium.  It  is  evident  that  such  defects  may  very  readily 
lead  to  anti-social  conduct.  (J.  W.  Astley  Cooper,  Pathological  Inebriety, 
New  York,  1913.)  See  T.  D.  Crothers,  Criminality  from  Alcoholism,  in  the 
Jour.  Crim.  Law,  Vol.  IV,  No.  6,  Mar.,  1914,  pp.  859-866, 


PSYCHOPATHIC   CRIMINALS  1 79 

neurosis  is  generally  characterized  by  gradual  mental  deteriora- 
tion which  is  quite  likely  to  lead  to  criminal  conduct.  Hysteria 
is  very  likely  to  lead  to  simulation,  and  not  so  much  to  action. 
Consequently,  hysterics  are  more  likely  to  threaten  to  do  anti- 
social acts  than  they  are  to  actually  perform  them.  But  they 
are  sometimes  guilty  of  minor  offenses,  such  as  false  accusations, 
excessive  lying,  vagrancy,  petty  stealing,  minor  sex  offenses, 
etc.  Neurasthenia  probably  plays  a  part  frequently  in  giving 
rise  to  vagrancy  and  mendicancy,  but  is  not  likely  to  lead  to 
serious  offenses.  Psychasthenia  may  be  a  phase  of  neurasthenia, 
and  probably  does  not  lead  frequently  to  crime. 

Cerebral  injuries  frequently  cause  great  changes  in  character. 
They  give  rise  to  instability,  forgetfulness,  lack  of  control,  feel- 
ings of  lassitude,  intolerance  for  alcohol,  etc.,  which  are  traits 
which  readily  lead  to  criminal  conduct.  ^ 

Abnormal  suggestibility  frequently  plays  a  part  in  leading  to 
criminal  conduct.  In  some  cases  this  develops  upon  a  psy- 
choneurotic basis.  But  in  many  cases  there  is  little  if  any 
pathological  basis,  and  the  suggestibility  arises  from  a  slight 
exaggeration  or  excessive  stimulation  of  normal  mental  traits. 
This  suggestibility  manifests  itself  in  various  forms.  There  is 
the  suggestibility  of  a  crowd  whose  members  under  the  pressure 
of  the  mob  spirit  will  commit  criminal  acts  which  they  would 
not  think  of  committing  at  other  times.^  Then  there  is  the  re- 
sponse of  individuals  to  suggestions  received  from  newspapers, 
books,  theaters,  etc.  This,  however,  strongly  resembles  the 
suggestibility  of  the  crowd. 

The  suggestibility  which  is  of  greatest  criminological  sig- 
nificance is  that  of  individuals  to  each  other.  There  are 
two  principal  forms  of  this  type  of  suggestibility.  The  first 
is  dual  suggestibility  in  which  two  individuals  stimulate  each 
other  in  an  approximately  equal  degree  to  commit  acts  which 
they  would  not  think  of  doing,  or  would  not  dare  to  do, 

'  See  A.  Meyer,  op.  at. 

2  There  is  an  extensive  literature  upon  the  psychology  of  the  crowd.  See 
S.  Sighele,  La  foule  criminelle,  Paris,  1901;  G.  Tarde,  Les  crimes  des  Joules, 
in  the  Arch,  d'anlh.  crim.,  Vol.  VI  I,  1892,  pp.  353-386;  P.  Aubry,  De  Vin- 
fliience  contagieuse  de  la  publicity  des  fails  criminels,  in  the  Arch,  d'anlh.  critn.y 
Vol.  VIII,  1893,  pp.  565-580;  C.  Binet-Sangle,  Le  crime  de  suggestion  re- 
Ugieuse,  in  the  Arch,  d'anlh.  crim.,  Vol.  XVI,  1901,  pp.  453-473. 


l8o  CRIMINOLOGY 

apart  from  each  other.  ^  The  second  is  the  response  of  a 
weaker  personality  to  the  influence  of  a  stronger  personality. 
In  many  cases  the  influence  is  sexual  in  its  nature,  in  some  cases 
it  is  due  to  a  form  of  hero  worship,  but  in  other  cases  it  is  based 
upon  an  appeal  to  sordid  motives. 

As  normal  mentality  is  approximated,  we  find  certain  mental 
states  giving  rise  sometimes  to  criminal  conduct.  A  somewhat 
accentuated  love  of  excitement  and  adventure  without  any 
neuropathic  basis  may  lead  under  favoring  circimistances  to 
truancy,  vagrancy,  mendicancy,  gambling,  petty  stealing,  etc. 
Mental  conflicts  and  repressions  in  normal  individuals  may  lead 
to  pathological  lying  and  accusation,^  truancy,  vagrancy,  arson, 
sex  ofifenses,  etc.  The  most  frequent  cause  of  these  conflicts  and 
repressions  is  sex,^  because  of  the  great  difficulty  of  satisfying  the 
sexual  desires  and  needs  of  the  individual  under  the  maladjusted 
conditions  created  by  society.  Other  causes  for  these  conflicts 
and  repressions  are  uncertainty  concerning  parentage,  deceit  and 
lies  on  the  part  of  persons  presumably  to  be  trusted,  etc.  The 
literature  of  psychoanalysis  is  now  throwing  a  flood  of  light  upon 
the  vast  influence  of  these  conflicts  and  repressions  in  the  life  of 
mankind,  especially  with  relation  to  the  sexual  nature  of  man. 
This  knowledge  is  absolutely  necessary  in  order  to  bring  about 
the  social  readjustment  which  will  prevent  most  of  these  con- 
flicts and  repressions.^ 

There  is  not  the  space  to  describe  other  abnormal  mental 
states  which  in  some  cases  lead  to  criminal  conduct.  Among 
these  are  hypomania  or  a  mild  form  of  insanity,  chorea  or  St. 
Vitus'  dance,  amnesic  fugues  or  wanderings  in  a  state  of  amnesia, 

^  See  S.  Sighele,  Le  crime  d,  deux,  Paris,  1910;  E.  Laurent,  Les  suggestions 
criminelles,  in  the  Arch,  d'aulh.  crim.,  Vol.  V,  1890,  pp.  596-641. 

*  See  W.  Healj^  and  Mary  T.  Healy,  Pathological  Lying,  Accusation,  atid 
Swindling,  Boston,  1915. 

'  "A  mental  conflict  presupposes,  of  course,  some  emotional  disturbance 
or  else  there  would  be  no  opposition  between  different  elements  of  mental 
content  or  activity.  Since  nothing,  by  the  innermost  nature  of  animate 
beings,  so  stirs  emotion  as  the  affairs  of  sex  life,  taking  this  term  in  its  broad- 
est sense,  it  is  to  be  presupposed  that  we  should  find  most  cases  of  mental 
conflict  to  be  about  hidden  sex  thoughts  or  imageries,  and  inner  or  environ- 
mental sex  exf)eriences."  (W.  Healy,  The  Individual  Delinquent,  p.  353.) 
This  writer  gives  an  excellent  discussion  of  this  subject  in  Chap.  10  of 
Book  II  of  this  work. 

*  See  W.  Healy,  Mental  Conflicts  and  Misconduct,  Boston,  191 7. 


PSYCHOPATHIC   CRIMINALS  l8l 

various  mental  states  which  lead  to  irresistible  impulses  such  as 
kleptomania,  pyromania,  homicidal  mania,  etc.^  I  shall  sum- 
marize the  preceding  discussion  by  means  of  a  brief  descrip- 
tion of  the  mental  traits  prevalent  among  criminals. 

Mental  Traits  Prevalent  among  Criminals 

Lombroso  and  some  of  the  other  older  criminologists  collected 
a  good  many  facts  which  they  believed  tO  prove  that  the  criminal 
is  notably  lacking  in  physical  sensibility,  and  is  characterized  by 
disvulnerability,  or  rapid  recovery  from  wounds.  These  traits, 
they  claimed,  furnished  the  physical  basis  for  the  moral  in- 
sensibility of  the  criminal,  because  physical  insensibility  would 
give  rise  to  lack  of  sympathy  for  the  sufferings  of  others.^  But 
this  theory  has  been  severely  criticized  and  gravely  questioned 
by  recent  writers. 

In  the  first  place,  physical  sensibility  is  a  very  delicate  thing 
to  measure,  and  it  is  highly  probable  that  most  of  the  facts 
which  have  so  far  been  collected  are  not  sufficiently  accu- 
rate to  be  trustworthy.  In  the  second  place,  morality  is  a 
complex  phenomenon  which  is  determined  by  all  of  the  prin- 
cipal mental  traits,  so  that  a  total  absence  of  moral  sense 
would  not  be  likely  to  arise  solely  from  the  lack  of  sympathetic 
feelings  which  physical  insensibility  might  occasion.  In  the 
third  place,  the  recent  study  of  mental  defectives  has  furnished 
considerable  evidence  that  aments  are  more  or  less  lacking  in 
physical  sensibility,  so  that  there  is  some  reason  for  believing 

^  In  addition  to  the  works  which  have  already  been  cited,  I  will  mention 
the  following  general  treatises  on  the  psychology  of  the  criminal  and  of 
crime: 

M.  Benedikt,  Anatomical  Studies  upon  Brains  of  Criminals,  New  York, 
1881. 

K.  Bimbaum,  Die  psychopathischen  Verbrechcr,  Berlin,  19 14. 

M.  Kaufifmann,  Die  Psychologie  dcs  Vcrbrechcns,  Berlin,  191 2, 

P.  Kovalevsky,  La  psychologic  criminelle,  Paris,  1903. 

A.  Kraus,  Die  Psychologie  dcs  Vcrbrechcns,  Tiibingen,  1884. 

R.  Sommer,  Kriminalpsychologie  und  Strafrechtliche  Psycho  pathologic  aiif 
naturwissenschafllichcr  Grundlage,  Leipzig,  1Q04. 

E.  Wulflfen,  Psychologie  dcs  Verbrechers,  Berlin,  1908,  2  vols. 

^  For  a  brief  summary  of  these  facts  upon  the  physical  insensibility,  dis- 
vulnerability, and  moral  insensibility  of  the  criminal,  see  H.  Ellis,  The 
Criminal,  London,  1903,  pp.  123-150. 


162  CRIMINOLOGY 

that  the  physical  insensibility  found  among  criminals  is  char- 
acteristic of  the  criminal  aments,  but  not  necessarily  of  criminals 
in  general.  At  any  rate,  the  theory  of  physical  insensibility 
resulting  in  moral  insensibility  as  a  universal  or  prevalent  trait 
of  criminals  must  be  seriously  questioned/  Where  such  moral 
insensibility  does  exist  it  is  very  likely  to  lead  to  cruelty.  It 
also  results  in  an  incapacity  for  remorse. 

On  the  intellectual  side,  we  have  seen  that  some  criminals  are 
feebleminded,  and  therefore  distinctly  lacking  in  intelligence. 
The  intellect  of  other  criminals  is  weakened  by  their  physical 
conditions,  or  by  mental  disease.  Some  of  these  criminals  are, 
to  be  sure,  characterized  by  a  sort  of  cunning.  But  it  is  a  cun- 
ning which  quickly  over-reaches  itself,  and  which,  therefore, 
cannot  be  given  a  high  intellectual  rating.  A  weak  intelligence 
naturally  leads  to  lack  of  forethought  which  is  characteristic  of 
many  criminals,  and  plays  a  part  in  determining  many  other 
criminal  traits,  some  of  which  I  am  about  to  mention. 

Laziness  is  characteristic  of  many  criminals,  and  inordinate 
vanity  has  been  noted  in  a  good  many  criminals.  These  traits 
are  probably  due  in  part  to  intellectual  defects,  but  perhaps  more 
to  emotional  peculiarities.  Emotional  instability  is  an  out- 
standing trait  of  many  criminals.  In  its  milder  forms  it  may 
reveal  itself  as  irritability,  craving  for  excitement,  etc.  In  its 
graver  forms  it  reveals  itself  in  irresistible  impulses  to  commit 
anti-social  acts.  In  all  its  forms  it  leads  to  lack  of  self  control 
which  is  a  wide-spread  trait  in  the  criminal  world.  ^ 

*  For  a  discussion  of  the  difficulties  in  the  way  of  measuring  physical  sen- 
sibility, see  Frances  A.  Kellor,  Experimental  Sociology,  Delinquents,  New 
York,  iQoi,  pp.  52-55- 

For  criticism  of  the  above-mentioned  theory,  see  E.  Laurent,  Le  Criminel, 
Paris,  1908,  pp.  27-30;  W.  Healy,  The  Individual  Delinquent,  p.  17. 

^  For  graphic  and  concrete  descriptions  of  the  mental  traits  of  criminals, 
see  the  following  works:  A.  Marro,  /  caratteri  dei  delinquenti,  Turin,  1887; 
A.  Corre,  Les  criminels,  Paris,  1889;  H.  Ellis,  The  Criminal,  London,  1003; 
E.  Laurent,  Les  habitues  des  prisons  de  Paris,  Lyons,  1890;  Le  criminel, 
Paris,  1908. 

Laurent,  who  has  had  an  extensive  experience  with  criminals  in  Paris 
and  elsewhere,  gives  a  graphic  picture  of  their  mental  traits  in  his  recent 
book.  {Le  criminel.  Chap.  III.)  This  picture  is  in  most  respects  accurate, 
at  least  for  the  habitual  inmates  of  prisons.  I  have  combined  in  one  con- 
tinuous passage  the  following  series  of  brief  excerpts  in  which  he  describes 
the    intelligence,    imagination,    feelings,    passions,    vanity,    mythomania, 


PSYCHOPATHIC  CRIMINALS  183 

*  The  facts  presented  in  this  chapter  and  the  two  preceding 
chapters  indicate  the  complexity  of  the  mental  causes  of  crim- 
inahty.    They  show  the  impossibihty  of  disentangUng  entirely 

simulation,  courage,  will,  moral  sense,  remorse,  religion,  language,  literature, 
art,  and  tattooing  of  criminals: 

"Les  criminals  sont-ils  intelligents?  En  g6n6ral,  ils  m'ont  paru  d'une 
intelligence  au-dessous  de  la  moyenne.  Imprevoyants  et  legers,  les  criminels, 
moins  que  n'importe  qui,  ne  sont  gens  de  lendemain.  Ils  vivent  au  jour  le 
jour,  esperant  que  le  hasard,  qui  leur  donne  aujourd'hui  du  pain  ou  un  bon 
coup  a  faire,  le  leur  ramftnera  le  lendemain.  Si  I'intelligence  des  criminels 
est  peu  developpee,  leurs  facultes  imaginatives  le  sont  encore  moins,  et,  chez 
un  assez  grand  nombre,  elles  n'existent  qu'a  un  6tat  tout  k  fait  rudimentaire. 

"La  sensibilite  affective  est  considerablement  ^moussee  chez  les  criminels. 
C'est  la  un  fait  hors  de  doute.  Toutes  les  passions  violentes  et  6manant  de 
mauvais  instincts  remontent  k  la  surface  chez  le  criminal  et  le  mfenent. 
C'est  de  lui  qu'on  peut  dire  avec  juste  raison  qu'il  est  le  jouet  de  ses  passions. 
Et,  de  cette  lutte  de  passions  qui  se  disputent  son  ^me,  resulte  une  insta- 
bility qui  fait  du  criminel  le  plus  versatile  des  hommes.  II  hait  aujourd'hui 
qui  il  aimait  tendrement  hier,  et  I'ami  d'aujourd'hui  sera  I'ennemi  de  de- 
main.  Et  la  m^re  de  tous  ces  vices,  c'est  la  paresse;  la  paresse,  mauvaise 
conseilldre  quand  I'estomac  a  faim;  la  paresse  qui  engendre  I'ivrognerie,  la 
luxure  et  la  debauche;  la  paresse  qui  paralyse  le  bras  d^sormais  incapable 
de  travailler  et  I'arme  du  far  homicide  afin  de  jouir  sans  peine. 

"La  vanite  joue  un  r61e  considerable  chez  les  individus  normaux  et  k 
plus  fort  raison  chez  les  criminels  qui  sont  souvent  des  anormaux.  Cet 
app^tit  de  la  notoriete,  ce  besoin  de  fanfaronnade  chez  les  criminels  de- 
veloppe  chez  eux  d'une  facon  presque  morbide  I'habitude  du  mensonge 
comme  chez  les  enfants.  Quand  la  simulation  s'associe  au  mensonge,  k  la 
mythomanie,  le  criminel  arrive  k  la  fabulation  fantastique,  selon  les  expres- 
sions de  A.  Trannoy.    (La  mylhomanie,  Paris,  igo6.) 

"J'ai  connu  bien  peu  de  detenus  courageux:  quoi  qu'on  en  ait  dit  et  quoi 
qu'ils  en  disent,  ils  redoutent  la  souffrance,  et  la  pensee  seule  de  I'echafaud 
les  fait  p^lir.  Aussi  la  volonte  est,  chez  les  criminels,  une  faculte  rudimen- 
taire ou  atrophiee  par  une  sorte  de  paralysie  psychique. 

"  Si  le  criminel  avait  des  remords,  s'il  avait  une  conscience,  il  ne  serait  pas 
criminel.  II  pourrait  quelquefois  commettre  un  crime  accidentellement, 
mais  jamais  par  habitude.  Je  crois,  avec  Lombroso  et  H.  Joly,  que  chez 
certains  peuples  superstitieux,  les  criminels  ne  se  d^barrassent  pas  facilement 
des  croyances  qu'on  leur  a  inculquees  des  leur  enfance.  lis  se  font  sans 
doute  des  religions  pleines  d'accommodements  et  de  mis6ricordes;  mais  ils 
ont  un  sentiment  religieux  profond  et  in^branlable. 

"La  plupart  des  criminels  de  Paris  6maillent  leur  conversation  d'un  grande 
nombre  demots  emprunt^s  k  I'argot  de  tous  les  metiers  et  k  I'argot  propre- 
ment  dit;  ils  denaturent  plus  ou  moins  les  terminaisons  et  les  desinences  des 
mots,  mais  le  fond  de  la  langue  reste  le  mfime,  et  il  est  facile  de  les  com- 
prendre,  sans  mfime  ^tre  initi6. 

"Tout  cela  a  fort  peu  de  valeur  au  point  de  vue  litt^raire.    Mais  tous  ces 


184  CRIMINOLOGY 

from  each  other  the  hereditary  and  acquired  elements  in  these 
mental  factors.  They  demonstrate  the  difficulty  of  classifying 
criminals  in  a  brief  and  categorical  fashion. 

At  the  same  time  we  must  remember  that  the  criminals  who 
have  been  discussed  are  those  who  are  more  of  less  abnormal  and 
pathological  in  mind.  As  a  matter  of  fact,  there  are  many  more 
persons  who  commit  criminal  acts  who  are  normal  or  almost 
normal.  In  fact  practically  every  member  of  society  is  destined 
at  one  time  or  another  to  commit  criminal  acts,  but  the  great 
majority  are  not  caught  at  it.^    Most  of  those  who  are  caught 

6crits  peuvent  avoir  un  grand  interet  pour  I'etude  de  Vkme  des  criminels, 
qu'on  voit  vaniteux,  cyniques,  et  sans  golit  pour  la  litterature  et  la  lecture, 
lisant  et  ecrivant  uniquement  par  vanity  ou  par  desoeuvrement,  ne  produi- 
sant  que  des  compositions  le  plus  souvent  obscenes  ou  bien  pleines  d'une 
emphase  ridicule,  trds  rarement  spirituelles,  et  presque  toujours  sans  aucune 
elevation  dans  le  style  ni  la  pensee. 

"J'ai  eu  entre  les  mains  un  grand  nombre  de  dessins  de  criminels.  Eh 
bien!  jamais,  au  grand  jamais,  je  n'ai  pu  y  saisir  une  pensee  elevee,  y  sentir 
palpiter  im  sentiment  noble.  Comment,  d'ailleurs,  pourraient-ils  exprimer 
ces  emotions  de  I'ame  qu'eux-memes  ne  ressentent  pas?  La  premiere  condi- 
tion pour  communiquer  une  impression  k  d'autres,  c'est  de  I'avoir  ressentie 
soi-merae.  Le  criminel  est  le  plus  naturaliste  des  artistes.  Je  prends  le  mot 
artiste  dans  un  sens  tout  a  fait  conventionnel.  II  rend  la  nature  dans  toute 
sa  banalite.  II  copie  plus  ou  moins  adroitement  ce  qu'il  voit;  il  n'imagine 
rien;  il  n'ajoute  rien,  ne  supprime  rien.  Aussi  toutes  ses  compositions  se 
ressemblent;  toutes  sont  d'une  navrante  banalite;  il  est  impossible  d'y 
trouver  une  idee,  d'y  puiser  une  Amotion. 

"Le  tatouage  presente-t-il,  chez  les  criminels,  des  caractSres  particuliers? 
A.  Baer  r^pond  par  la  negative.  'Le  tatouage,  dit-il,  n'a  aucun  lien  d'origine 
avec  I'atavisme,  et  moins  encore  avec  la  criminalite,  car  il  resulte,  chez  les 
criminels,  uniquement  des  circonstances  particulieres  de  leur  vie  et  de  leurs 
relations  sociales.'  Ce  sont,  en  effet,  k  peu  pres  les  conclusions  qu'on  pour- 
rait  tirer  de  I'etude  que  je  viens  d'esquisser. 

"La  conclusion  qui  decoule  de  cette  6tude  anatomique  et  psychique  des 
criminels!  c'est  qu'on  peut  rencontrer  chez  eux  des  series  de  caractdres  plus 
ou  moins  constants,  nuUement  absolus,  variables  suivant  une  foule  de  cir- 
constances. Au  point  de  vue  anatomique  comme  au  point  de  vue  psychique, 
il  n'y  a  pas  plus  de  type  criminel  que  de  type  d'aliene.  II  y  a  de  grandes 
vari6tes  de  criminels  comme  il  y  a  de  grandes  variet6s  d'alienes.  Quelques 
caractfires  seulement  sont  assez  communs  et  permettent  de  les  classer  tous 
dans  une  mfime  famille." 

^  Among  these  unconvicted  persons  is  a  genuine  criminal  group  whose 
members  never  figure  in  criminal  statistics.  This  group  includes  the  more 
intelligent  and  skillful  of  the  professional  criminals,  such  as  the  expert 
forgers  and  counterfeiters,  bank  burglars,  receivers  of  stolen  goods,  etc., 
many  of  whom  are  never  caught.     It  should  also  include  many  persons, 


PSYCHOPATHIC   CRIMINALS  185 

belong  to  the  occasional  and  professional  classes  of  criminals, 
which  include  the  vast  majority  of  the  total  number  of  criminals. 

such  as  fraudulent  borrowers  and  bankrupts,  confidence  men,  etc.,  who 
succeed  in  avoiding  overt  violations  of  the  letter  of  the  law,  but  who  are 
committing  acts  which  are  as  anti-social  in  their  character  as  the  majority 
of  crimes. 

Corre  {op.  cit.,  pp.  329-363)  recognizes  this  group  in  the  fourth  class  of 
his  classification  of  criminals: 

1.  Les  faux  criminels  ou  les  criminels  ali^n^s. 

2.  Les  criminels  accidentels  (includes  "les  criminels  passionels"). 

3.  Les  criminels  d'etat  ou  de  profession  (includes  "les  criminels-nes  et 
les  criminels  d'habitude  de  divers  auteurs"). 

4.  Les  criminels  latents  ou  les  faux  honnStes  gens  (outside  of  the  prisons). 


CHAPTER  XIII 
THE  TYPES  OF  CRIMINALS 

Simple  classifications  of  criminals  —  Lombroso's  classification  —  Ferri's 
classification  —  Classifications  derived  from  Lombroso  and  Ferri  — - 
Garofalo's  classification  —  Criticism  of  classifications  of  criminals  — 
A  new  classification  of  criminal  tj'pes  —  Description  of  the  principal 
criminal  types  —  Distribution  of  criminals  among  the  criminal  types. 

According  to  some  criminologists  there  are  biological  and 
anthropological  types  of  criminals.  In  similar  fashion  it  is 
believed  by  some  criminologists  that  there  are  psychological 
criminal  types,  owing  to  important  differences  in  the  mental 
traits  of  criminals.  It  is  also  believed  that  there  are  social  and 
cultural  types,  owing  to  important  differences  in  social  status 
and  cultural  traits. 

There  are  several  rubrics  according  to  which  criminals  may 
be  classified.  For  example,  they  may  be  classified  with  respect 
to  sex.  The  important  differences  between  the  sexes  inevitably 
give  rise  to  somewhat  different  criminal  traits.  In  similar  fashion 
the  important  differences  between  the  young  and  adults  give 
rise  to  differences  between  juvenile  and  adult  criminality. 

The  present  chapter  is  devoted  to  a  discussion  of  the  criminal 
types,  with  special  reference  to  adult  male  criminals.  A  large 
part  of  what  is  stated  in  this  chapter,  however,  applies  to  female 
and  juvenile  criminals  as  well,  and  a  knowledge  of  it  is  essential 
to  an  understanding  of  female  and  juvenile  criminality,  which 
will  be  described  in  the  two  following  chapters. 

Simple  Classifications  of  Criminals 

The  simplest  classification  of  criminals  is  a  twofold  one.^ 
Ordinarily  the  purpose  of  such  a  classification  is  to  disdnguish 
between  the  criminals  who  commit  few  crimes  and  those  who 
commit  many  crimes.    But  these  twofold  classifications  differ 

'  A  long  list  of  authors  who  have  suggested  a  twofold  classification  of 
criminals  is  given  by  E.  Ferri,  Criminal  Sociology,  Boston,  191 7,  pp.  160^. 


THE   TYPES   OF  CRIMINALS  187 

amongst  themselves  in  accordance  with  the  theories  of  their 
authors  as  to  the  causes  of  criminaUty.  Those  who  believe  that 
there  is  a  congenital  criminal  type  divide  criminals  into  (i)  the 
bom  or  instinctive  criminals,  and  (2)  the  occasional  criminals. 
Those  who  do  not  believe  that  there  is  a  congenital  criminal 
type,  but  that  a  criminal  nature  may  be  acquired  by  habit, 
diyide  criminals  into  (i)  the  habitual  or  professional  criminals, 
and  (2)  the  occasional  criminals.  It  is  obvious  that  a  twofold 
classification  is  altogether  too  simple  to  indicate  the  various 
types  of  criminals. 

A  threefold  classification  has  been  proposed  by  many  writers.^ 
Ordinarily  such  a  classification  divides  criminals  into  (i)  the 
born  or  instinctive  criminal,  (2)  the  habitual  criminal,  and  (3)  the 
occasional  criminal.  This  mode  of  classifying  criminals  solves 
the  problem  of  the  congenital  criminal  type  mentioned  above 
by  recognizing  both  the  congenital  type  and  the  habitual  type. 
But  it  is  out  of  the  question  to  recognize  an  instinctive  criminal, 
since  there  is  no  instinct  of  crime;  while  there  are  objections 
also  to  the  use  of  the  term  "born  criminal."  There  are  also 
objections  to  the  use  of  the  term  "habitual  criminal,"  which  I 
shall  mention  presently.  Furthermore,  a  threefold  classification 
of  criminals,  like  a  twofold  classification,  is  not  sufficiently 
complex  to  indicate  the  more  distinct  of  the  types  of  criminals. 
Some  authors  have  endeavored  to  make  the  foregoing  classifica- 
tion more  adequate  by  adding  to  it  the  class  of  the  insane  crimi- 
nals, thus  making  it  a  fourfold  classification.^ 

LoMBROso's  Classification 

Let  us  now  turn  to  more  systematic  classifications  of  criminals. 
The  development  of  the  modern  science  of  criminology  has  been 

'  For  example,  J.  Arboux,  Les  prisons  de  Paris,  Paris,  1881.  Drahms,  in 
his  incoherent  and  unscientific  book  on  the  criminal,  has  suggested  a  similar 
classification.  (A.  Drahms,  The  Criminal,  New  York,  1900.)  In  his  more 
lucid  exposition  and  defense  of  Drahms'  classification,  Ellvvood  has  im wit- 
tingly revealed  still  more  clearly  the  absurdity  of  Drahms'  theory.  (C.  A. 
Ellwood,  The  Classification  of  Criminals,  in  the  Jour.  Crim.  Law,  Vol.  I,  No.  4, 
November,  1910,  pp.  536-548.)  Drahms  classified  all  types  of  criminals 
as  instinctive  criminals,  habitual  criminals,  and  single  offenders. 

^For  example,  A.  Lacassagne,  Marche  de  la  criminality,  in  the  Revue 
scientifiqiie,  May  28,  1881;  H.  Maudsley,  Remarks  on  Crime  and  Criminals^ 
in  the  Jour,  of  Mental  Science,  July,  1888, 


l88  CRIMINOLOGY 

Stimulated  principally  by  the  so-called  positive  school  of  crim- 
inologists, which  is  sometimes  called  the  Italian  school.  The 
founder  and  leader  during  his  lifetime  of  this  school  was  the 
famous  Italian  criminologist,  Cesare  Lombroso.  Throughout  his 
long  life  Lombroso  was  engaged  in  numerous  firsthand  studies 
of  criminals.  Most  of  these  studies  were  devoted  to  the  examina- 
tion and  measurement  of  the  anatomical  and  physiological 
traits  of  criminals.  A  few  of  them  were  devoted  to  psychological 
traits.  As  a  result  of  these  studies  Lombroso  formulated  the 
following  classification  of  criminals:  —  ^ 

1.  Born  criminal. 

2.  Insane  criminal. 

3  Criminal  by  passion . . 
a.  Political  criminal. 
4.  Occasional  criminal. 

a.  Pseudo-criminal. 

b.  Habitual  criminal. 

c.  Criminaloid. 

I  have  already  summarized  and  briefly  criticized  Lombroso's 
theory  of  the  bom  criminal  in  Chapter  IX,  so  need  not  discuss 
it  further  at  this  point. 

Lombroso's  conception  of  the  insane  criminal  is  similar  to 
that  of  other  criminologists.  He  describes  how  the  various 
types  of  insanity  give  rise  to  criminal  acts.  For  example,  hom- 
icidal mania  leads  to  murder,  pyromania  to  incendiarism,  klep- 
tomania to  theft,  etc.  But  some  of  these  probably  are  cases  of 
amentia  rather  than  of  insanity,  and  Lombroso  failed  to  dis- 
tinguish clearly  between  the  two.  This  is  indicated  by  the  fact 
that  he  asserts  that  he  found  the  congenital  criminal  type  very 
frequently  in  the  group  of  criminals  which  he  calls  insane. 

The  criminals  by  passion  are  characterized  by  a  high  degree 
of  affectibility  which,  under  the  stress  of  unusual  circimistances, 
gives  rise  to  a  passion  which  leads  them  to  commit  crimes  of 
violence.  A  peculiar  feature  of  Lombroso's  theory  of  the  crim- 
inal by  passion  is  that  the  political  criminal  is  a  special  kind  of 
criminal  by  passion.^  He  became  convinced  that  in  most  politi- 
cal criminals  there  is  "an  exaggerated  sensibiUty,  a  veritable 

*  C.  Lombroso,  L'homme  criminel,  Paris,  1895,  2  vols. 

*  C.  Lombroso  and  R.  Laschi,  Le  crime  politique  el  les  revolutions,  Paris, 
1892,  2  vols. 


THE   TYPES   OF   CRIMINALS  189 

h)^eresthesia,  as  in  the  ordinary  criminals  by  passion;  but  a 
powerful  intellect,  a  great  altruism  push  them  towards  ends 
much  higher  than  those  of  the  latter."  ^  This  is  an  interesting 
and  suggestive  idea  which  I  shall  discuss  in  the  last  part  of 
this  book. 

The  class  of  occasional  criminals  is  very  broad  and  rather 
diverse  according  to  Lombroso.  It  includes  three  sub-classes. 
The  first  of  these  sub-classes  is  the  group  of  the  pseudo-criminals 
who  commit  crimes  involuntarily,  who  are  not  perverse  in  their 
intentions,  who  commit  acts  which  are  not  prejudicial  to  society 
but  which  are  called  crimes  by  the  law,  who  commit  crimes 
under  extraordinary  circumstances,  such  as  for  the  defense  of 
the  person,  of  honor,  or  for  the  subsistence  of  a  family.  These 
pseudo-criminals  are  normal  persons  whose  crimes  are  ''rather 
juridical  than  real  because  they  are  created  by  imperfections  of 
the  law  more  than  by  those  of  men;  they  do  not  awaken  any 
fear  for  the  future,  and  they  do  not  disturb  the  moral  sense  of 
the  masses."  ^ 

The  second  sub-class  of  occasional  criminals  is  made  up  of  the 
habitual  criminals,  whom  Lombroso  characterizes  as  follows:  — 
"The  greatest  number  of  these  individuals  is  furnished  by  those 
who  —  normal  from  birth  and  without  tendencies  or  a  peculiar 
constitution  for  crime  —  not  having  found  in  the  early  education 
of  parents,  schools,  etc.,  this  force  which  provokes,  or,  better 
said,  facilitates  the  passage  from  this  physiological  criminality  — 
which  we  have  seen  belongs  properly  to  early  age  —  to  a  normal, 
honest  life,  fall  continually  into  the  primitive  tendencies  to- 
wards evil."  ^  The  habitual  criminal  is,  therefore,  a  normal  per- 
son who  is  led  by  the  circumstances  of  his  early  life  into  a  career 
of  crime. 

The  third  sub-class  of  occasional  criminals  is  made  up  of  the 
criminaloids,  whom  Lombroso  characterizes  as  follows : — "  These 
are  individuals  who  constitute  the  gradations  between  the  born 
criminal  and  the  honest  man,  or,  better  still,  a  variety  of  bom 
criminal  who  has  indeed  a  special  organic  tendency,  but  one 
which  is  less  intense,  who  has  therefore  only  a  touch  of  degener- 
acy; that  is  why  I  will  call  them  criminaloids.    But  it  is  natural 

'  L'homme  criminel,  Vol.  II,  p.  217. 
*  Op.  cit.,  Vol.  II,  p.  484. 
*Op.cit.,YolU,p.  534. 


190  CRIMINOLOGY 

that  in  them  the  importance  of  the  occasion  determining  the 
crime  should  be  decisive  while  it  is  not  so  for  the  born  criminal 
for  whom  it  is  a  circumstance  with  which  he  can  dispense  and 
with  which  he  often  does  dispense,  as,  for  example,  in  cases  of 
bruial  mischievousness."  ^  The  criminaloid  is,  therefore,  a 
transitional  type  between  the  occasional  and  the  born  criminal. 

Lombroso  includes  many  criminals  in  the  class  of  occasional 
criminals,  probably  more  than  is  advisable.  Most  criminologists 
recognize  two  or  more  distinct  types  among  the  criminals  Lom- 
broso calls  occasional.  His  use  of  the  term  "occasional"  be- 
comes rather  misleading  because  of  the  diversity  of  kinds  of 
criminals  to  which  it  is  applied. 

Ferri's  Classification 

Another  leader  of  the  positive  school  of  criminology  has  been 
and  is  the  eminent  Italian  criminal  sociologist,  Enrico  Ferri. 
His  classification  of  criminals  is  as  follows:  —  ^ 

1.  Insane  criminal. 

2.  Born  criminal. 

3.  Habitual  criminal. 

4.  Occasional  criminal. 

5.  Criminal  by  passion. 

Ferri's  classification  resembles  in  the  main  that  of  Lombroso, 
and  I  need  only  mention  the  differences.  He  recognizes  the 
habitual  criminal  as  a  distinct  type.  According  to  Ferri,  the 
individuals  belonging  to  this  type  do  not  have,  or  have  only  to 
a  slight  degree,  the  peculiar  traits  of  the  bom  criminal.  Their 
first  crimes  are  caused  less  by  congenital  tendencies  than  by 
the  force  of  circumstances  and  of  corrupt  surroundings.  But 
when  once  a  crime  has  been  committed,  usually  at  an  early 
age  and  almost  always  against  property,  they  persist,  especially 
when  encouraged  by  the  impunity  which  often  follows  their 
first  offenses,  in  criminal  conduct,  which  becomes  a  habit  and  a 
veritable  profession.  "This  comes  from  the  fact  that  detention 
in  common  corrupts  them  morally  and  physically,  confinement 
in  cells  stupefies  them,  alcoholism  brutalizes  them,  and  society, 
abandoning  them  after  as  before  their  liberation,  to  wretched- 
ness, idleness,  and  temptation,  does  not  help  them  in  their 

^Op.  cii.,  Vol.  II,  p.  512. 

*  Criminal  Sociology,  Boston,  191 7,  Part  I,  Chap.  3. 


THE   TYPES   OF  CRIMINALS  I9I 

Struggle  to  re-enter  the  conditions  of  honest  life."  ^  Precocity 
and  recidivism  are  the  principal  traits  of  the  habitual  criminal. 
They  are  characteristic  of  the  born  criminal  also,  but  owing  to 
different  causes. 

The  occasional  criminals,  according  to  Ferri,  are  those  who 
"have  not  received  from  nature  an  active  tendency  towards 
crime  but  have  fallen  into  it,  goaded  by  the  temptation  incident 
to  their  personal  condition  or  physical  and  social  environment 
and  who  do  not  repeat  their  offense  if  these  temptations  are 
removed."  ^  But  even  in  most  of  the  occasional  criminals  there 
is  some  abnormality,  though  much  less  than  in  the  born  crimi- 
nals. Of  the  two  conditions  which,  according  to  Ferri,  psychic- 
ally determine  crime  —  moral  insensibility  and  lack  of  foresight 
—  the  second  determines  mainly  the  crime  of  occasion,  while  the 
first  mainly  determines  habitual  and  congenital  delinquency. 
The  social  sense,  the  lack  of  which  causes  moral  insensibility, 
may  be  strong  in  the  occasional  criminal,  but  it  is  not  seconded 
by  a  sufficiently  keen  prevision  of  the  consequences  of  crime, 
and  therefore  yields  to  the  external  force.  There  are,  however, 
those  whom  Lombroso  has  called  "pseudo-criminals"  who  are 
entirely  normal,  and  yet  have  committed  crime  involuntarily, 
or  have  done  acts  causing  no  social  damage  and  displaying  no 
perversity,  but  which  nevertheless  are  criminal. 

The  criminal  by  passion,  or  by  transport  of  passion,  is,  ac- 
cording to  Ferri,  an  occasional  criminal,  but  with  peculiar 
traits  which  distinguish  him  from  other  occasional  criminals. 
The  criminals  by  passion  are  "individuals  whose  lives  have 
previously  been  blameless  —  men  of  a  sanguine  or  nervous  tem- 
perament with  exaggerated  sensibility,  quite  the  reverse  of  the 
born  and  habitual  criminals.  They  are  sometimes  of  a  tem- 
perament closely  related  to  that  of  the  insane  or  epileptic,  of 
which  their  criminal  rage  may  be  only  a  disguised  manifesta- 
tion. Most  often  (especially  in  the  case  of  women)  they  com- 
mit the  crime  in  their  youth  under  the  impulse  of  imcontrolled 
passion,  like  anger,  jealousy,  or  shame."  ^ 

Ferri  refuses  to  recognize  the  political  offender  as  a  criminal 
type.  He  asserts  that  the  political  offender  is  a  "pseudo-crimi- 
nal" and  not  a  true  criminal.'*    This  idea  is  bound  up  with  his 

1  Op.  cit.,  p.  146.  2  Op.  cit.,  p.  154 

'  Op.  cit.,  p.  153.  *  Op.  cit.,  p.  163. 


192  CRIMINOLOGY 

theory  of  evolutive  as  contrasted  with  atavistic  crime,  which 
I  shall  discuss  in  Chapters  XXVIII  and  XXIX  on  political 
and  evolutive  crime. 

Classifications  Derived  From  Lombroso  and  Ferri 

Many  criminologists  have  followed  Lombroso  and  Ferri  in 
their  classifications  of  criminals,  sometimes  with  slight  mod- 
ifications. For  example,^  Ellis  has  proposed  the  following  clas- 
sification: —  (i)  Political  criminal,  (2)  Criminal  by  passion, 
(3)  Insane  criminal,  (4)  Instinctive  criminal,  (5)  Occasional 
criminal,  (6)  Habitual  criminal,  (7)  Professional  criminal.  The 
born  criminal  he  calls  instinctive,  and  explains  this  change  of 
terminology  in  the  following  words:  —  "Lombroso  and  some 
other  authorities  prefer  the  term  'born  criminal,'  or  'congenital 
criminal'  (reo-nato).  The  term  'instinctive  criminal'  seems  to 
be  safer,  as  it  is  not  always  possible  to  estimate  the  congenital 
element."  ^  This  is  an  insufficient  reason  for  such  a  change, 
since  instinct  is  as  congenital  as  any  other  hereditary  trait. 
Furthermore,  I  have  already  demonstrated  that  there  is  no 
instinct  of  crime,  and  that  therefore  it  is  absurd  to  speak  of  an 
instinctive  criminal. 

Ellis  recognizes  the  professional  criminal  as  a  distinct  type, 
whereas  Lombroso  and  Ferri  merge  the  professional  in  the 
habitual  type.  Ellis  distinguishes  between  the  two,  and  char- 
acterizes the  professional  type  as  follows:  —  "In  the  habitual 
criminal,  who  is  usually  unintelligent,  the  conservative  forces 
of  habit  predominate;  the  professional  criminal,  who  is  usually 
intelligent,  is  guided  by  rational  motives,  and  voluntarily  takes 
the  chances  of  his  mode  of  life.  .  .  .  The  professional  criminal, 
though  not  of  modern  development,  adapts  himself  to  modern 
conditions.  In  intelligence,  and  in  anthropological  rank  gen- 
erally, he  represents  the  criminal  aristocracy.  He  has  delib- 
erately chosen  a  certain  method  of  earning  his  living.  It  is  a 
profession  which  requires  great  skill,  and  in  which,  though  the 
risks  are  great,  the  prizes  are  equally  great."  ^ 

Another  classification  of  this  kind  is  the  following:  —  (i)  In- 
sane criminal,  (2)  Born  criminal,  (3)  Habitual  criminal,  (4)  Pro- 

^  H.  Ellis,  The  Criminal,  London,  1903,  Chap.  i. 

2  Op.  cit.,  p.  17.  *  Op.  cit.,  pp.  21-22. 


THE   TYPES   OF   CRIMINALS  193 

fessional  criminal,  (5)  Occasional  criminal,  (6)  Criminal  by 
passion  or  accident.^  Still  another  classification  which  resembles 
the  above  classifications,  but  which  is  badly  confused  in  certain 
respects,  is  the  following:  —  (i)  Chance  criminal,  (2)  Criminal 
by  passion,  (3)  Criminal  by  opportunity,  (4)  Deliberate  criminal, 
(5)  Recidivist,  (6)  Habitual  criminal,  (7)  Professional  criminal.^ 
In  this  classification  it  is  difficult  to  distinguish  between  the 
deliberate  criminal  and  the  recidivist,  between  the  recidivist  and 
the  habitual  criminal,  between  the  deliberate  criminal  and  the 
professional  criminal,  etc. 

Garofalo's  Classification 

Another  leader  of  the  positive  school  of  criminology  is  the 
well  known  Italian  criminologist  and  jurist,  Raflfaele  Garofalo. 
While  agreeing  with  Lombroso  and  Ferri  in  their  positive, 
scientific  point  of  view,  he  does  not  accept  their  classifications  of 
criminals,  and  has  devized,  upon  a  psychological  basis,  the  fol- 
lowing classification:  —  ^ 

1.  Typical  criminals  or  murderers. 

2.  Violent  criminals. 

a.  Endemic  crimes. 

b.  Crimes  of  passion. 

3.  Criminals  deficient  in  probity. 

4.  Lascivious  criminals. 

The  typical  criminal  is,  according  to  Garofalo,  "a  man  in 
whom  altruism  is  totally  lacking."  He  is  characterized  by  com- 
plete egoism,  and  an  absence  of  any  sentiment  of  benevolence  or 
pity  and  of  the  sentiment  of  justice.  ''Hence  the  same  criminal 
will  be  thief  or  murderer  as  occasion  arises:  he  will  take  life  to 
satisfy  his  greed  for  money,  to  gain  an  inheritance,  to  rid  him- 
self of  his  wife  that  he  may  marry  another,  to  put  out  of  the 
way  an  incriminating  witness,  to  avenge  a  fancied  or  insignificant 
wrong,  or  even  to  exhibit  his  physical  dexterity,  his  sure  eye, 
his  firm  hand,  to  display  his  contempt  for  the  police  or  his  hatred 
for  men  of  another  class."  *    The  typical  criminal  may,  there- 

1  P.  A.  Parsons,  Responsibility  for  Crime,  New  York,  1909,  Chap.  2. 

*  G.  Aschaffenburg,  Crime  and  Its  Repression,  Boston,  1913,  pp.  198-213. 
'  R.  Garofalo,  Criminology,  Boston,  1914,  Part  11,  Chap.  I. 

*  Op.  cit.,  pp.  1H-112. 


194  CRIMINOLOGY 

fore,  be  a  thief  instead  of  a  murderer  ("assassin^'),  and  appar- 
ently corresponds  to  the  born  or  instinctive  criminal  of  other 
classifications. 

The  violent  criminal,  who  is  rather  vaguely  described  by 
Garofalo,  represents  a  milder  form  of  criminality  than  the  typical 
criminal.  Like  the  typical  criminal,  he  lacks  the  sentiment  of  be- 
nevolence or  pity.  There  are  two  sub-classes  of  violent  criminals. 
The  first  includes  "  the  authors  of  such  crimes  against  the  person 
as  may  be  termed  endemic,  or  in  other  words,  such  crimes  as  con- 
stitute the  special  criminality  of  a  given  locality.  Modern  exam- 
ples of  this  sort  of  criminality  are  found  in  the  vendettas  of  the 
Neapolitan  Camorrists  or  the  political  assassinations  of  the  Rus- 
sian Nihilists."  ^  The  second  sub-class  includes  those  who  com- 
mit crimes  under  the  influence  of  passion.  "This  condition  *  may 
be  habitual  and  represent  the  temperament  of  the  individual' 
(Benedikt),  or  else  may  be  the  result  of  external  causes,  such  as 
alcoholic  liquors,  high  temperature,  or  even  circumstances  of  a 
really  extraordinary  nature  which  are  calculated  to  arouse  the 
anger  of  any  person,  although  not  to  quite  the  same  degree.  In 
the  last  case  the  criminal  may  closely  approach  the  normal 
man."  ^ 

The  criminals  deficient  in  probity  commit  crimes  against 
property.  "Here,  unquestionably,  social  factors  are  much  more 
influential  than  in  the  preceding  classes.  But  this  fact  does  not 
always  prevent  us  from  detecting  in  the  criminal's  organism  an 
element  which  preexists  any  eff"ect  of  environmental  influence. 
The  sentiment  of  probity  is  undoubtedly  less  instinctive  than 
that  of  pity,  or  to  state  the  matter  more  accurately,  it  is  not 
so  strictly  dependent  upon  the  organism.  It  is  a  sentiment  of 
more  modern  acquisition,  it  represents  a  superposed,  almost 
superficial,  stratum  of  the  moral  sense,  and  consequently  is  less 
susceptible  of  hereditary  transmission  than  the  sentiment  of 
pity.  It  lacks,  moreover,  that  peculiarly  congenital  nature  for 
which  education  can  furnish  no  substitute.  In  a  civilized  society 
this  sentiment  of  probity  is  generally  the  effect  of  examples  in 
infancy  which,  continually  renewed,  have  produced  an  ingrained 
instinct  which  in  all  probability  will  persist  for  life."  ^ 

The  lascivious  criminals  {"cyniques")  are  those  who  commit 

^  Op.  cit.,  p.  112.  ^Op.  cit.,  pp.  115-116. 

'  Op.  cit.,  pp.  125-126. 


THE   TYPES   OF   CRIMINALS  I95 

sexual  crimes,  and  offenses  against  chastity.  Garofalo  recog- 
nizes that  these  crimes  are  due  to  several  different  causes:  — 
"In  many  cases  the  authors  of  such  crimes  must  be  assigned  to 
the  class  of  violent  criminals.  But  where  an  extreme  degree  of 
lasciviousness  is  the  sole  motive  of  the  offense,  satyrs  of  this 
description  are  often  found  suffering  from  some  form  of  aliena- 
tion." ^  But  there  is  reason  to  beUeve  that  he  has  differentiated 
this  type  of  criminals  too  hastily.  When  we  consider  the  great 
variety  of  factors  which  play  a  part  in  giving  rise  to  sexual 
crimes,  such  as  various  psychoses  and  neuroses,  sadism,  mas- 
ochism, satyriasis,  nymphomania,  sexual  inversion,  sexual 
fetishism,  etc.;  to  say  nothing  of  various  factors  external  to  the 
individual,  such  as  undue  repression  of  the  normal  sex  instinct, 
alcohol,  religion,  etc.;  it  is  evident  that  these  crimes  cannot  be 
attributed  to  one  type  of  criminals. 

Garofalo's  attempt  to  devize  a  psychological  classification  of 
criminals  was  commendable.  But  he  fell  far  short  of  success. 
His  classification  is  vague,  it  is  not  comprehensive,  and  it  is  not 
self -consistent. 

Criticism  of  Classifications  of  Criminals 

Let  us  now  review  briefly  the  classifications  of  criminals  which 
have  been  stated.  It  must  be  evident  by  this  time  that  all  of 
them  are  unsatisfactory,  for  they  all  contain  grave  biological 
and  psychological  fallacies,  no  one  of  them  is  entirely  self-consist- 
ent, and  no  one  of  them  is  sufficiently  systematic  and  compre- 
hensive. I  will  comment  upon  each  of  the  distinct  types  differ- 
entiated in  these  classifications. 

I  have  shown  that  there  could  be  no  born  or  instinctive  crim- 
inal in  the  strict  sense  of  those  terms.  It  is  biologically  erro- 
neous to  speak  of  a  born  criminal,  for  criminality  is  a  social 
attribute  acquired  after  birth,  and  therefore  could  not  be  con- 
genital. In  similar  fashion  it  is  both  biologically  and  psycholog- 
ically erroneous  to  speak  of  an  instinctive  criminal,  for  there  is 
not  and  could  not  be  an  instinct  of  crime.  At  the  same  time, 
it  is  true  that  many  inherited  traits  become  powerful  forces  for 
crime  in  the  lives  of  many  criminals.  Some  of  these  traits  are 
instincts  which  are  unusually  strong,  or  which  are  unusually 

^  Op.  cii.,  p.  130. 


196  CRIMINOLOGY 

weak,  or  which  take  an  abnormal  direction.  Others  of  these 
traits  are  abnormalities  of  the  feelings  and  emotions,  of  the 
intellect,  etc.  So  that  hereditary  factors  play  an  important 
part  in  the  causation  of  crime.  It  is,  however,  probable  that 
there  are  several  types  of  criminals  in  which  hereditary  factors 
play  a  predominant  part.  I  have  shown  that  hereditary  factors 
play  an  important  part  in  causing  the  criminal  conduct  not 
only  of  criminal  aments,  but  also  of  psychopathic  criminals. 

It  is  likewise  psychologically  erroneous  in  most  if  not  all 
cases  to  speak  of  a  habitual  criminal.  Habit  exists  only  when 
through  constant  repetition  a  person  acquires  great  facility  in 
performing  a  particular  action.  By  habitual  criminal  is  ordi- 
narily meant  a  person  who  commits  criminal  acts  frequently, 
but  not  owing  to  inherited  traits  as  in  the  case  of  the  so- 
called  born  criminal.  This  person  is  therefore  said  to  have 
acquired  "the  habit  of  crime.  But  in  many  cases  the  habitual 
criminal  commits  many  different  kinds  of  crime.  At  one  time 
he  may  commit  a  crime  against  the  person,  such  as  assault; 
at  another  time  he  may  commit  a  crime  against  property,  such 
as  burglary.  It  is  evident  that  he  must  employ  different  actions 
in  these  two  types  of  crime.  And  even  if  he  always  commits 
the  same  type  of  crime,  as,  for  example,  larceny,  he  will  under 
different  circumstances  commit  the  crime  in  different  ways. 

In  fact,  it  is  probable  that  it  is  an  illegitimate  use  of  the  term 
to  speak  of  a  habitual  criminal,  except  possibly  in  connection 
with  highly  specialized  types  of  crime,  such  as  pickpocketing 
in  which  the  pickpocket  may  acquire  great  dexterity  in  slipping 
his  fingers  into  the  pockets  of  his  victims.  But  even  in  these 
highly  specialized  crimes,  different  circumstances  require  dif- 
ferent methods  in  committing  the  same  crime,  so  that  there  can 
be  no  invariable  habitual  method. 

The  criminals  ordinarily  called  habitual  should  in  most  cases 
be  called  professional  criminals.  The  term  professional  is 
neither  a  biological  nor  a  psychological  term,  but  is  a  social 
and  economic  term.  When  applied  to  criminals  it  describes 
the  persons  who  commit  crimes  repeatedly  because  they  have 
been  driven  to  do  so  by  the  force  of  circumstances  in  order  to 
make  a  living,  or  have  deliberately  chosen  a  criminal  career  as 
the  most  profitable  or  the  easiest  mode  of  gaining  a  livelihood. 

The  insane  criminal  doubtless  exists  in  the  sense  that  many 


THE   TYPES   OF   CRmiNALS  I97 

insane  persons  commit  criminal  acts,  and  that  these  acts  are 
frequently  due  to  their  insanity.  There  are,  however,  many 
kinds  of  insanity.  Consequently,  there  are  several  kinds  of 
insane  criminals.  So  that  it  would  be  a  mistake  to  regard  insane 
criminals  as  constituting  but  one  type. 

There  doubtless  are  criminals  by  passion,  for  some  crimes 
are  committed  in  a  state  of  passion.  There  are,  however,  various 
kinds  of  passion,  each  of  which  arises  out  of  an  excessive  ex- 
citation of  one  or  another  of  the  emotions,  sometimes  of  several 
of  them  at  the  same  time.  For  example,  the  state  of  passion 
may  be  due  to  anger,  jealousy,  offended  self  esteem,  etc.  Each 
of  these  is  psychologically  a  distinct  t3q)e,  so  that  there  are 
several  types  of  criminals  by  passion. 

The  term  occasional  criminal  is  a  more  or  less  accurate  though 
rather  vague  name  for  a  somewhat  indefinite  group  of  criminals. 
It  may  be  applied  to  a  large  group  of  persons  who  commit 
crimes  occasionally,  but  not  frequently,  owing  mainly  to  the 
force  of  circumstances. 

A  New  Classification  of  Criminal  Types 

It  is  not  easy  to  classify  the  members  of  any  large  human 
group,  owing  to  the  great  diversity  of  types  in  any  such  group. 
In  classifying  criminals  this  difficulty  is  due  principally  to  the 
almost  infinite  degree  of  gradation  between  the  different  types. 
This  extensive  gradation  is  due,  on  the  one  hand,  to  the  large 
amount  of  variation  in  the  traits  of  individual  criminals,  and, 
on  the  other  hand,  to  the  great  variety  of  circumstances  under 
which  crimes  are  committed.  The  occasional  criminal  merges, 
on  the  one  hand,  into  the  so-called  born  criminal,  and,  on  the 
other  hand,  into  the  professional  criminal.  The  criminal  by 
passion  sometimes  approaches  certain  types  of  the  insane  crimi- 
nal. The  criminal  ament  and  the  psychopathic  criminal  are 
closely  related  in  some  cases.  There  is  danger,  therefore,  of 
making  a  classification  which  is  so  detailed  that  it  will  be  helpful 
only  to  those  who  are  able  to  make  an  intensive  study. 

A  classification  of  criminals  should  be  based  in  the  main  upon 
the  causation  of  criminality,  for  the  principal  use  of  such  a 
classification  is  to  aid  in  planning  the  treatment  of  criminals, 
and  this  treatment  must  be  directed  primarily  at  the  causes  -of 


198  CRIMINOLOGY 

their  criminality.  In  devizing  a  classification  of  criminals  it  is 
imperative  to  guard  against  several  dangers.  In  the  first  place, 
no  type  should  be  included  which  does  not  actually  exist,  and 
which  cannot  be  more  or  less  successfully  described.  In  the 
second  place,  no  type  which  exists  and  is  correctly  described 
should  be  misnamed.  In  the  third  place,  the  classification 
should  not  be  so  simple  as  to  omit  any  type  which  can  be  clearly 
distinguished.  In  the  fourth  place,  the  classification  should 
not  be  so  complex  and  lengthy  that  the  types  will  not  stand 
out  distinctly. 

We  have  seen  that  the  simple  classifications  of  criminals  are 
not  sufficiently  detailed,  and  that  each  of  the  more  complicated 
classifications  which  have  been  formulated  contains  grave 
errors  in  the  description  of  the  various  types  of  criminals.  Fu- 
ture classifications  of  criminals  will  depend  largely  upon  the 
progress  of  the  science  of  psychology.  They  will  also  depend 
in  part  upon  changes  in  the  political  and  economic  organization 
of  society.  They  may  also  depend  to  a  slight  extent  upon 
changes  in  human  nature,  but  extensive  changes  in  human 
nature  are  not  likely  to  take  place. 

Notwithstanding  these  difficulties,  and  on  account  of  the 
great  practical  need  for  a  classification  of  criminals,  I  shall 
propose  the  following  classification  of  criminal  types,  formulated 
in  accordance  with  the  above-mentioned  rules,  and  subject  to 
modification  by  the  advancement  of  science  and  human  and 
social  progress  in  general. 

A  Classification  of  Criminal  Types 

1.  The  criminal  ament  or  feebleminded  criminal. 

2.  The  psychopathic  criminal. 

3.  The  professional  criminal. 

4.  The  occasional  criminal. 

a.  The  accidental  criminal. 

b.  The  criminal  by  passion. 

5.  The  evolutive  criminal. 

b.  The  political  criminal. 

Description  of  the  Principal  Criminal  Types 

After  the  extended  discussion  in  the  preceding  chapters,  a 
brief  description  of  each  of  these  types  will  be  sufficient.    We 


THE   TYPES   OF  CRIMINALS  I99 

have  seen  how  amentia  leads  to  criminality  in  some  cases.  We 
have  also  noted  that  two  or  more  sub-types  may  be  distinguished 
among  the  criminal  aments.  These  feebleminded  criminals 
take  the  place  in  our  classification  of  the  born  and  instinctive 
criminals  of  the  older  classifications. 

All  criminals  who  commit  their  crimes  under  the  influence  of 
a  distinct  psychosis  are  included  in  the  psychopathic  class. 
Among  these  criminals  are  the  insane  criminals  of  the  older 
classifications,  but  owing  to  the  vagueness  of  the  term  insanity 
it  is  preferable  to  call  them  psychopathic  criminals.  As  our 
discussion  has  shown,  there  are  many  kinds  of  psychoses,  so  that 
many  sub-types  may  be  differentiated  in  this  class.  Dementia, 
the  neuroses,  abnormal  appetites,  etc.,  give  rise  to  these  psy- 
choses. 

The  third  class  includes  not  only  all  of  the  professional  crimi- 
nals of  other  classifications,  but  also  most  if  not  all  of  the  habit- 
ual criminals  of  many  classifications.  Many  criminals  have  been 
called  habitual  criminals  either  because  they  are  believed  to  have 
formed  the  habit  of  performing  a  certain  kind  or  certain  kinds  of 
crime,  or  because  their  usual  activities  are  criminal.^  I  have 
already  criticized  on  psychological  grounds  the  notion  that  a 
criminal  can  form  a  habit  of  committing  certain  kinds  of  crimes. 
There  could  be  very  few  if  any  cases  of  this  sort  because  of  the 
great  variety  of  circumstances  under  which  crimes  are  committed, 
so  that  each  set  of  circumstances  requires  a  somewhat  different 
manner  of  performing  the  crime.  Furthermore,  while  the  mode 
of  life  of  the  criminal  may  include  various  habits  which  are  more 
or  less  peculiar  to  it,  there  is  no  more  reason  for  calling  it  habitual 
than  there  is  for  calling  the  mode  of  life  of  the  lawyer  or  doctor 
habitual  rather  than  professional.  On  the  whole,  it  is  prefera- 
ble to  designate  as  professional  all  criminals  who  are  not  feeble- 
minded or  psychopathic,  but  who  commit  crimes  repeatedly 
and  who  support  themselves  entirely  or  in  part  by  means  of  their 
criminal  conduct. 

'  "In  police  circles  nothing  is  better  recognized  than  the  force  of  criminal- 
istic habit,  because  of  its  intensely  practical  bearings.  The  well-known 
return  of  the  offender  to  the  old  scene,  to  the  old  type  of  misdeed,  to  renewal 
of  life  with  former  companions;  the  engaging  in  prior  occupations,  the  suc- 
cumbing to  temptations  which  previously  won  the  day,  are  all  evidences  of 
deep-seated  psychological  laws."  (W.  Healy,  The  Individual  Delinquent, 
P-  349-) 


200  CRIMINOLOGY 

It  must,  however,  be  recognized  that  there  is  a  good  deal  of 
diversity  within  the  class  of  professional  criminals  as  I  have 
defined  it.  They  vary  from  the  intelligent,  expert  professionals, 
who  reap  huge  profits  from  their  criminal  career,  to  the  repeated 
petty  offenders,  who  eke  out  a  precarious  existence  with  their 
petty  crimes,  but  are  too  stupid  and  weak  by  birth  or  as  a  result 
of  their  experience  to  commit  more  profitable  crimes.^  They 
vary  from  those  who,  though  not  feebleminded  or  psychopathic, 
possess  abnormal  or  pathological  mental  traits  which  have  led 
them  into  a  criminal  career,  to  those  who  are  entirely  normal, 
but  have  been  led  into  crime  by  their  training  and  circumstances 
in  life.  They  vary  from  those  who  have  deliberately  chosen 
a  criminal  career,  who  are  the  only  ones  recognized  by  many 
criminologists  as  professionals,^  to  those  who  have  drifted  into 
it  largely  through  the  force  of  circumstances,  and,  consequently, 
with  little  or  no  choice  on  their  own  part.^ 

1  Sutherland  distinguished  between  the  "criminal  recidivist"  who  com- 
mits major  crimes  and  the  "petty  offender  recidivist."  He  estimated  that 
at  the  time  he  wrote  there  were  in  England  20,000  criminal  recidivists  and 
13,000  petty  offender  recidivists,  and  in  Scotland  3,000  criminal  recidivists 
and  1,700  petty  offender  recidivists.  (J.  F.  Sutherland,  Recidivism,  Edin- 
burgh, 1908,  p.  9.) 

2  See,  for  a  statement  of  this  point  of  view,  W.  Healy,  op.  ciL,  Bk.  II, 
Chap.  8.  Healy  says  that  "in  general  the  criterion  for  discrimination  of 
this  professional  class  is  that  their  criminalism  is  deliberate,  premeditated 
and  repeated,  as  compared  to  the  type  of  action  which  is  the  result  of  the 
impulse  of  the  moment."  (P.  316.) 

^  The  careers  of  a  large  number  of  professional  criminals  are  described 
in  T.  Byrnes,  Professional  Criminals  of  America,  New  York,  1886. 

Tarde  has  proposed  the  singular  theory  that  all  criminals  are  professional 
criminals,  and  that  the  criminal  type  is  a  professional  type,  just  as  the  mem- 
bers of  the  so-called  liberal  professions  represent  professional  types.  The 
preceding  discussion  has  shown  the  fallacy  of  this  theory.  Many  of  the 
feebleminded  and  psychopathic  criminals  are  incapable  of  being  profes- 
sional criminals,  while  most  if  not  all  of  the  criminals  by  passion  and  the 
accidental  criminals  are  not  professionals.  The  class  of  occasional  criminals 
is  made  up  of  individuals  some  of  whom  will  become  professional  criminals, 
and  others  of  whom  will  never  become  professionals. 

Tarde's  theory,  however,  implies  the  relationship  between  criminal  and 
non-criminal  activities  which  I  have  pointed  out  several  times.  He  de- 
scribes the  manner  in  which  professional  criminal  activities  shade  off  into 
non-criminal  and  supposedly  honest  professional  activities  in  the  following 
words: 

"If  the  petty  criminal  industry  which  languishes  in  the  depths  of  our 


THE  TYPES  OF  CRIMINALS  20I 

The  class  of  occasional  criminals  also  comprizes  a  consider- 
able variety  of  criminals.  It  includes  all  those  who  under  the 
pressure  of  unusual  circumstances,  and  sometimes  also  in  part 
owing  to  slightly  abnormal  or  pathological  mental  traits,  commit 
only  one  or  a  very  few  crimes  in  the  course  of  a  lifetime.  How- 
ever, it  also  includes  some  persons  who  will  eventually  become 
professional  criminals. 

In  this  class  I  have  also  put  the  accidental  criminals  who  are 
led  to  commit  crimes  under  peculiar  circumstances,  and  almost 
through  no  choice  of  their  own.  I  have  also  included  the  crimi- 
nal by  passion  who  is  not  feebleminded  or  psychopathic,  but 
who  may  possess  a  somewhat  excitable  temperament.  Such  a 
person  may  commit  a  crime,  usually  a  crime  against  the  person, 
under  the  pressure  of  unusual  circumstances  and  under  the  in- 
fluence of  the  passion  aroused  by  those  circumstances,  whereas 
he  could  not  be  induced  to  commit  a  criminal  act  in  any  other 
way. 

The  evolutive  and'  political  criminals  constitute  a  special 
type  of  criminal  which  I  shall  describe  in  the  last  part  of  this 
book. 


towns,  like  so  many  little  shops  where  a  backward  manufacture  survives, 
does  nothing  but  harm,  the  great  criminal  industry  has  had  its  days  of  great 
and  fearful  utility  in  the  past,  under  its  military  and  despotic  form;  and, 
imder  its  financial  form,  people  pretend  that  it  renders  appreciable  services. 
Where  would  we  be  if  there  had  never  been  any  fortunate  criminals,  eager 
to  overcome  scruples,  rights,  prejudices,  and  customs  in  order  to  drive  the 
human  race  from  the  pastoral  poem  to  the  drama  of  civilization?  And 
must  we  not,  unfortunately,  recognize  the  fact  that  from  the  out  and  out 
criminal  to  the  most  honest  merchant  we  pass  through  a  series  of  transi- 
tions, that  every  tradesman  who  cheats  his  clients  is  a  thief,  that  every 
grocer  who  adulterates  his  wine  is  a  poisoner,  and  that,  as  a  general  thing, 
every  man  who  misrepresents  his  merchandise  is  a  forger?  And  I  do  not 
mention  the  great  number  of  industries  that  exist  more  or  less  indirectly 
through  the  profits  of  crime,  —  low  taverns,  houses  of  prostitution,  gambling 
houses,  old-clothes  shops,  —  which  are  just  so  many  places  of  refuge  for 
the  receipt  of  stolen  goods  for  delinquents.  They  have  many  other  accom- 
plices. Among  the  upper  classes,  how  much  extortion,  how  many  doubt- 
ful bargains,  how  much  traffic  in  decorations,  demand  the  complicity  of 
people  who  are  rich  and  are  reputed  to  be  honest,  who  profit  by  them, 
not  always  without  their  knowledge!  If  the  tree  of  crime,  with  all  its 
roots  and  its  rootlets,  could  ever  be  uprooted  from  our  society,  it  would 
leave  a  giant  abyss."  (G.  Tarde,  Penal  Philosophy,  Boston,  191 2, 
P-  2S5-) 


202  criminology 

Distribution  of  Criminals  among  the  Criminal  Types 

Having  described  the  principal  criminal  types,  it  is  interesting 
to  consider  how  many  criminals  belong  to  each  of  these  types. 
It  will  be  necessary  first  to  estimate  the  size  of  the  criminal 
class  as  a  whole. 

It  is  obviously  impossible  to  count  the  total  number  of  crim- 
inals, because  many  of  them  are  never  caught.  Furthermore, 
criminal  statistics  availablev  for  making  an  estimate  of  the 
number  of  criminals  are  not  so  numerous  nor  so  good  as  they 
would  be  if  the  proper  governmental  agencies  kept  adequate 
records  of  arrests,  trials,  convictions,  penalties,  population  of 
penal  institutions,  etc.    This  is  especially  true  in  this  country.^ 

It  is  necessary,  in  the  first  place,  to  decide  whom  we  are  to 
include  in  the  criminal  population.  If  we  include  all  persons  who 
have  committed  illegal  acts,  we  shall  have  to  stigmatize  as  crim- 
inal the  vast  majority  of  the  total  population,  as  I  have  al- 
ready pointed  out.  Or  if  we  include  all  those  who  have  been 
caught  and  convicted,  we  shall  have  to  stigmatize  as  criminal 
many  persons  each  of  whom  has  committed  a  single  offense, 
usually  petty  in  its  character,  but  has  pursued  a  law-abiding 
career  during  the  remainder  of  his  life.^  It  is  obvious  that  neither 
of  these  methods  is  desirable. 

^  The  inadequacy  of  these  statistics  is  discussed  by  L.  N.  Robinson,  His- 
lary  arid  Organization  of  Criminal  Statistics  in  the  U.  S.,  Boston,  1911. 

2  The  most  careful  estimate  of  this  sort  of  which  1  know  has  been  made 
by  Finkelnburg  in  Germany.  (K.  Finkelnburg,  Die  Bestraften  in  Deutsch- 
land,  Berlin,  191 2.)  This  writer  calculated  the  number  of  persons  who  had 
been  convicted  of  crime  in  the  population  of  Germany  on  the  basis  of  the 
criminal  statistics  of  the  German  Empire  since  1882  and  the  census  of  the 
population  of  the  German  Empire  in  December,  1910.  After  making  all 
of  the  necessary  deductions  for  death,  emigration,  foreign  citizenship,  etc., 
he  concluded  that  out  of  every  11.7  persons  12  years  of  age  or  over,  one 
person  had  been  convicted  of  crime.  (Pp.  32-33.)  Furthermore,  he  cal- 
culated that  out  of  every  212.7  girls  12  years  of  age  or  over  up  to  18  years 
of  age,  one  girl  had  been  convicted  of  crime;  out  of  every  42.7  boys  12  years 
of  age  or  over  up  to  18  years  of  age,  one  boy  had  been  convicted  of  crime; 
out  of  every  24.6  women  18  years  of  age  or  over,  one  woman  had  been  con- 
victed of  crime;  and  out  of  every  6.2  men  18  years  of  age  or  over,  one  man 
had  been  convicted  of  crime. 

Goring  has  made  a  similar  estimate  for  male  offenders  in  England,  but 
has  gone  still  further  and  has  included  also  those  persons  in  the  present 
population  who  will  commit  crimes  in  the  future.    He  has  estimated  that 


THE  TYPES   OF  CRIMINALS  203 

In  the  criminal  population  should  be  included  only  those  who 
at  the  given  time  and  place  menace  society  with  anti-social 
acts  which  the  law  has  made  illegal.  In  the  first  place,  there 
should  be  included  those  who  on  account  of  grave  abnormal 
and  pathological  traits  have  committed  crimes  and  are  likely 
to  commit  more  of  them  in  the  future,  namely,  the  feebleminded 
and  psychopathic  criminals.  In  the  second  place,  there  should 
be  included  all  the  professional  criminals,  whether  abnormal  or 
normal,  and  whether  they  have  adopted  a  criminal  career 
voluntarily  or  have  drifted  into  it  largely  through  force  of  cir- 
cumstances. In  the  third  place,  there  should  be  included  the 
accidental  and  occasional  criminals  and  the  criminals  by  pas- 
sion of  the  moment,  that  is  to  say,  those  who  have  committed 
crimes  by  accident,  occasion,  and  passion  within  the  very  recent 
past,  as,  for  example,  during  the  past  year.  Those  who  have 
committed  criminal  acts  in  the  more  distant  past,  but  are  not 
likely  to  commit  any  more  crimes,  can  hardly  be  said  to  menace 
society,  and  should  therefore  not  be  included  in  the  criminal 
population.  If  they  were  included,  this  method  could  not  be  a 
true  measure  of  the  criminality  of  the  community. 

The  size  of  each  of  these  groups  must  be  determined,  in  the 
first  place  from  the  available  statistics  of  criminals  who  are 
caught.  Then  if  there  are  any  data  on  the  basis  of  which  it  is 
possible  to  make  an  estimate  of  the  number  of  criminals  who  are 

the  total  population  of  male  offenders,  both  prior  and  subsequent  to  convic- 
tion, in  England  and  Wales,  is  3,110,500;  of  whom  the  population  prior  to 
conviction  (eventual  offenders)  is  1,115,490,  and  the  population  subsequent 
to  conviction  (manifest  offenders)  is  1,995,010.  (C.  Goring,  The  English 
Convict,  London,  1913,  p.  234.) 

Goring  does  not  state  the  exact  date  at  which  his  estimate  held  good. 
Presumably  it  was  at  about  the  time  of  publication  of  his  report.  Nor  does 
he  state  the  ratio  between  the  criminal  male  population  and  the  total  male 
population.  For  these  reasons  it  is  impossible  to  make  an  accurate  com- 
parison between  the  Finkelnburg  and  the  Goring  estimates.  Finkelnburg 
calculated  that  there  were  3,060,000  male  offenders  in  the  German  Empire, 
of  whom  90,000  were  12  years  of  age  or  over  up  to  18  years  of  age. 

It  appears  from  these  estimates  that  both  in  England  and  in  Germany 
the  actual  offenders  constituted  something  over  5  per  cent  of  the  total 
population. 

Both  of  the  above  estimates  doubtless  include  many  persons  each  of 
whom  has  committed  but  a  single  petty  offense,  and  who,  therefore,  should 
not  be  regarded  as  belonging  to  the  criminal  class,  according  to  our  defini- 
tion of  that  term. 


204  CRIMINOLOGY 

undetected  and  uncaught,  it  may  be  advisable  to  add  this  es- 
timate to  the  above  numbers.  Such  an  estimate  would  at  best 
be  very  rough  in  its  nature. 

According  to  the  U.  S.  Bureau  of  the  Census,  there  were  on 
January  i,  1910,  in  the  penal  institutions  (state  prisons  and 
penitentiaries,  county  jails  and  workhouses,  municipal  jails 
and  workhouses,  institutions  for  juvenile  delinquents,  etc.) 
of  this  coimtry  136,472  inmates.  Of  these  124,424  were  males, 
and  12,048  were  females.  Of  the  total  number  24,974  were 
juvenile  delinquents.  During  the  year  1910  there  were  commit- 
ted to  these  penal  institutions  493,934  persons;  of  whom  445,431 
wiere  males,  and  48,503  were  females.  During  the  same  year 
468,277  persons  were  discharged  or  paroled  from  these  insti- 
tutions; of  whom  422,258  were  males,  and  46,019  were  females.^ 
The  ratio  of  commitments  per  100,000  of  population  was  537.0; 
for  males  the  ratio  was  940.9,  for. females  the  ratio  was  108.8. 

The  above  statistics  seem  to  indicate  that  there  were  about 
six  hundred  thousand  persons  in  the  penal  institutions  of  the 
United  States  during  1910.  In  other  words,  a  little  more  than 
six-tenths  of  i  per  cent,  of  the  total  population  may  have  been 
imprisoned  during  that  year.  But  these  figures  give  no  indica- 
tion as  to  the  number  of  recommitments  during  that  year,  so 
that  it  is  impossible  to  estimate  how  many  different  individuals 
were  inmates  of  these  institutions  during  19 10.  They  also  do 
not  indicate  how  many  persons  convicted  during  that  year 
were  not  committed  to  these  institutions,  but  were  fined,  re- 
leased on  a  suspended  sentence  or  on  probation,  or  were  treated 
in  some  other  way.  Furthermore,  they  give  no  direct  or  definite 
indication  of  the  distribution  of  the  inmates  of  these  institutions 
among  the  different  classes  of  criminals.  Consequently,  the 
utility  of  these  figures  as  indicating  the  aggregate  number  of 
criminals  is  very  limited.^    As  to  the  number  of  criminals  who 

^Census  Bulletin,  121,  Prisoners  and  Juvenile  Delinquents,  iQio,  Wash- 
ington, 19 13. 

^  Notwithstanding  the  extreme  inadequacy  of  these  statistics,  the  follow- 
ing estimate  of  the  number  of  criminals  in  this  country  has  been  based  upon 
them:  "The  stronghold  of  crime  in  the  United  States  is  defended  by  a  stand- 
ing army  of  not  less  than  400,000.  The  latest  returns  concerning  this  army 
are  from  the  United  States  Census  of  1910,  but  we  can  rest  assured  that  in 
the  intervening  five  years  it  has  not  suffered  any  material  loss.  On  the  first 
day  of  January  of  that  year  there  were  136,000  persons  in  custody  in  prisons, 


THE  TYPES  OF  CRIMINALS  205 

were  not  detected  or  caught  during  that  year,  I  know  of  no  data 
at  present  available  which  would  furnish  a  basis  for  even  the 
roughest  sort  of  estimate  of  the  size  of  this  group  of  criminals. 
But  I  will  hazard  the  guess  that  less  than  one-half  of  the  pro- 
fessional criminals  are  caught  during  any  one  year. 

We  have  seen  from  the  statistics  summarized  in  Chapter  XI 
that  the  most  careful  studies  of  groups  of  criminals,  which  neces- 
sarily are  selected,  do  not  reveal  more  than  from  10  to  20 
per  cent  of  aments.  Consequently,  probably  not  more  than  from 
5  to  10  per  cent  of  the  total  number  of  criminals  are  feeble- 
minded. The  same  investigations  do  not  seem  to  reveal  more 
than  10  per  cent  who  possess  well  marked  psychoses,  and  who 
are  therefore  distinctly  insane.  However,  insanity  is  more 
easily  recognized  than  amentia,  so  that  there  are  many  insane 
persons  who  commit  criminal  acts  who  on  account  of  their  in- 
sanity are  not  prosecuted  and  convicted  as  criminals.  At  any 
rate,  these  investigations  seem  to  indicate  that  in  all  probabil- 
ity there  are  not  over  20  per  cent  and  perhaps  considerably 
less  than  that  percentage  of  the  total  number  of  criminals  who 
are  sufficiently  abnormal  or  pathological  in  mind  to  be  classified 
either  as  feebleminded  or  as  insane.  There  are,  of  course,  many 
in  addition  who  are  suffering  from  minor  mental  deficiencies. 

Inasmuch  as  there  are  very  few  evolutive  and  political  crimi- 
nals, practically  all  of  the  remaining  80  per  cent  of  criminals 
must  be  divided  between  the  professional  and  occasional  crimi- 
nals. This  sub-class  of  criminals  by  passion  doubtless  is  very 
small,  and  the  sub-class  of  accidental  criminals  probably  is  com- 
paratively small.  So  that  there  can  be  little  question  that  the 
great  majority  of  criminals  belong  either  to  the  professional 

reformatories,  jails  and  workhouses.  During  that  year  there  were  493,000 
commitments  to  the  same  institutions,  but  included  in  these  were  an  un- 
known number  of  recommitments  of  the  same  persons.  If  we  allow  a  little 
more  than  one-third  of  the  total  number  for  possible  recommitments  (and 
this  is  a  liberal  allowance)  and  add  the  remaining  314,000  to  the  number 
in  the  institutions  on  the  first  day  of  the  year  we  shall  have  450,000  indi- 
viduals confined  in  these  institutions  during  the  year.  But  I  want  to  be 
still  more  conservative  and  from  these  I  deduct  the  odd  fifty  thousand. 
Moreover  I  shall  not  consider  the  large  number  of  criminals  at  large  and 
not  on  record  during  the  year."  (J.  P.  Byers,  Prison  Reform,  in  the  Jour. 
Crim.  Law,  Vol.  VI,  No.  6,  March,  1916,  p.  875.) 

I  hardly  need  to  comment  that  it  is  well  to  beware  of  all  such  estimates. 


'2o6  CRIMINOLOGY 

class;  or  to  the  main  group  of  occasional  criminals  who"  commit 
crimes  only  occasionally,  but  some  of  whom  will  eventually 
become  professional  criminals.  It  is  impossible  to  determine 
the  proportion  between  these  two  classes  of  criminals,  but  in 
all  probability  the  occasional  class  is  considerably  larger  than 
the  professional  class. 


CHAPTER  XIV 
JUVENILE  CRIMINALITY 

Differences  between  childhood  and  adulthood  —  Extent  and  character  of 
juvenile  crimes  —  Poverty  and  juvenile  criminality  —  Parentage  and 
home  life:  broken  homes;  illegitimacy  —  Education  and  crime:  intel- 
lectual education;  moral  education;  vocational  training;  illiteracy  and 
criminality  —  Recreation  and  crime  —  Immigration  and  crime  — 
Effect  of  imprisonment  upon  young  criminals. 

There  are  two  important  classifications  of  criminals  which 
we  have  not  yet  discussed,  namely,  the  classifications  according 
to  age  and  according  to  sex.  In  the  present  chapter  I  shall 
recognize  the  distinction  in  age  by  describing  the  criminal 
traits  peculiar  to  the  young. 

The  criminal  traits  of  the  young  are  of  interest  and  importance 
not  only  for  their  own  sake,  but  also  on  account  of  the  light 
their  study  throws  upon  the  corresponding  traits  of  adults. 
Many  criminal  careers  begin  in  childhood  or  early  youth.  And 
even  when  a  criminal  career  begins  after  maturity  has  been 
reached,  the  experiences  and  influences  of  early  youth  are 
frequently  of  great  significance  for  explaining  the  later  crimi- 
nality. Consequently,  the  study  of  juvenile  criminality  is  in 
large  part  a  contribution  to  the  study  of  adult  criminality  as 
well. 

Differences  between  Childhood  and  Adulthood 

In  distinguishing  between  the  two  age  groups  it  is  possible 
to  err  either  by  going  to  the  extreme  of  exaggerating  their  differ- 
ences, or  by  going  to  the  opposite  extreme  of  minimizing  unduly 
these  differences.  Lombroso  was  led  into  the  first  error  because 
he  was  obsessed  with  a  mistaken  theory  of  atavism.^  According 
to  him  the  child  represents  an  earlier  stage  in  the  evolution  of 
the  htmian  species,  so  that  in  the  child  are  to  be  found  in  a 
normal  fashion  traits,  such  as  anger,  vengeance,  jealousy,  lying, 

^  C.  Lombroso,  L'homme  criminel,  Paris,  1895,  Vol.  I,  Part  I,  Chap.  3. 


2o8  CRIMINOLOGY 

cruelty,  laziness,  vanity,  lack  of  foresight,  etc.,  which  when  man- 
ifested to  the  same  degree  of  intensity  by  an  adult  are  regarded 
as  immoral  and  criminal.  Consequently,  he  stigmatizes  the 
morality  of  the  normal*  child  as  being  analogous  to  that  of  the 
moral  imbecile  and  born  criminal. 

It  is  true  that  the  recapitulation  theory  makes  this  notion 
seem  plausible.  According  to  this  theory  the  individual  or- 
ganism in  its  ontogenetic  development  recapitulates  to  a  certain 
extent  the  phylogenetic  evolution  of  the  species.  If  this  recapit- 
ulation were  to  continue  during  the  postnatal  period  of  develop- 
ment, the  child  might  be  regarded  as  representing  in  a  measure 
a  lower  type.  But  in  all  probability  this  recapitulation,  so  far 
as  it  takes  place,  is  entirely  uterine,  and  ends  before  the  close 
of  the  prenatal  period.  Consequently,  the  individual  has  fully 
attained  the  human  level  at  the  time  of  birth,  and  the  differences 
between  children  and  adults  do  not  correspond  to  the  differ- 
ences between  the  human  type  and  prehuman  types.  Only  in 
exceptional  cases  can  the  individual  exhibit  prehuman  traits 
due  to  atavism  or  arrested  development,  which  he  will,  however, 
carry  throughout  life. 

It  is,  therefore,  erroneous  to  assume  that  the  child  is  passing 
through  the  fish  or  reptile  or  lower  mammalian  stages  of  mental 
and  moral  development.  The  physical,  mental,  and  moral  differ- 
ences between  the  child  and  the  adult  are  due  to  the  fact  that 
they  are  at  different  stages  in  the  ontogenetic  development. 
The  child  is  still  in  the  throes  of  this  process  while  the  adult  is 
in  the  main  through  with  it.  Consequently,  several  traits  are 
peculiar  to  childhood  and  early  youth  which  may  be  stated 
briefly  as  follows. 

In  the  first  place,  the  child  is  subjected  to  the  strain  of  growth 
which  uses  up  much  of  his  energy.  In  the  second  place,  the 
sexual  instincts  and  feelings  are  almost  entirely  lacking  during 
childhood.  In  the  third  place,  at  the  time  of  puberty  comes 
a  crisis  due  to  the  great  changes  caused  by  the  awakening  of 
the  sexual  nature,  and  throughout  the  period  of  adolescence, 
while  the  sexual  nature  is  coming  to  full  maturity,  there  is  much 
instability  of  mind  and  character.  In  the  fourth  place,  the  child 
begins  his  life  after  birth  in  total  ignorance,  owing  to  lack  of 
experience  and  education,  and  without  any  moral  training,  and 
acquires  knowledge  and  moral  character  to  the  extent  that  his 


JUVENILE  CRIMINALITY  209 

congenital  traits  and  the  environment  permit  of  such  acquisi- 
tion.^ 

Owing  to  the  physical  strain  of  growth,  puberty,  and  adoles- 
cence, even  the  healthy  young  person  may  temporarily  be  in  a 
somewhat  abnormal  and  pathological  state,  which  in  some 
cases  may  lead  to  criminal  conduct,  but  will  later  pass  on  to  a 
normal  and  healthy  adulthood.  If,  however,  the  child  has 
inherited  any  congenital  weakness,  he  is  much  more  likely  to 
develop  abnormal  and  pathological  traits  which  may  remain 
with  him  throughout  life.  These  traits  of  childhood  and  early 
youth,  therefore,  may  or  may  not  prove  to  be  traits  of  adult- 
hood as  well.  In  other  cases  criminal  conduct  on  the  part  of 
children  may  be  due  solely  to  ignorance  and  lack  of  suitable 
guidance. 

We  can  now  see  clearly  that,  while  juvenile  criminality  differs 
from  adult  criminality  in  some  of  its  features,  juvenile  and  adult 
criminality  are  similar  with  respect  to  many  traits,  probably  in 
most  respects.  In  fact,  the  juvenile  criminal  is  frequently  the 
prototype  of  the  adult  criminal.  Consequently,  most  of  the 
facts  which  have  been  presented  in  the  preceding  chapters 
with  regard  to  the  criminal  in  general  apply  to  the  young  as 
much  as  to  adults. 

Extent  and  Character  of  Juvenile  Crimes 

Before  going  further  with  this  study  of  juvenile  criminality, 
it  will  be  well  to  present  some  statistics  concerning  the  extent 

1  Duprat  compares  the  child  and  especially  the  adolescent  with  the  adult 
in  the  following  terms: 

"L'enfant  a  moins  de  vigueur  et  d'experience;  il  est  plus  emotif  et  moins 
passionne;  I'adulte  a  plus  de  force,  de  pers6v6rance,  d'experience,  de  puis- 
sance de  reflexion  et  d'inhibition ;  I'adolescence  est  I'&ge  de  la  volonte  encore 
faible,  des  sophismes  de  la  passion,  des  croyances  ardentes,  des  negations 
audacieuses,  des  enthousiasmes  passagers  et  des  repulsions  promptes  k  se 
manifester,  de  I'amitie  et  de  I'amour  souvent  sans  lendemain,  de  I'dmulation, 
de  la  jalousie,  de  la  vanite,  de  I'oscillation  entre  le  travail  r6gulier  et  la 
paresse,la  continence  et  la  debauche,  de  rapprcntissage  sous  toutes  ses  formes, 
de  la  preparation  decisive  3.  la  vie  honnete  ou  k  I'activite  immorale.  C'est 
le  moment  critique  par  excellence,  tant  au  point  de  vue  du  devenir  phys- 
iologique  qu'au  point  de  vue  de  revolution  mentale  et  morale,  de  I'acquisi- 
tion  d'aptitudes  k  la  vie  sociale."  (G.  L.  Duprat,  La  criminalili  dans  I'ado' 
lescence,  Paris,  1909,  pp.  19-20.) 


2IO 


CRIMINOLOGY 


and  character  of  juvenile  crimes.  All  of  the  difficulties  involved 
in  the  study  of  criminal  statistics  in  general  exist  to  an  even 
greater  degree  in  the  study  of  the  statistics  of  juvenile  crimes. 
Young  children  are  usually  not  prosecuted  at  all  for  criminal 
acts.  Older  children  also  are  frequently  not  prosecuted,  or 
when  prosecuted  their  cases  are  frequently  disposed  of  in  such 
a  fashion  that  they  are  not  recorded  in  criminal  statistics.  So 
that  the  statistical  record  of  juvenile  criminality  is  exceedingly 
inadequate. 

The  following  table  from  the  U.  S.  Census  statistics  gives 
some  indication  of  the  age  distribution  of  criminals  in  this 
country: 


Age  Distribution  of  Offenders  Committed  to  Prison  in  the  United 
States  in  iqio 

Commitments  in  igio 

Ratio  per  100,000 

Age                               Population  Number            of  population 

All  ages 91,973,266  493,934  537  ■  o 

Under  10  years 20,391,996  568  2.8 

10  to  14  years 9,107,140  9,061  99 -S 

10  years 1,868,533  710  38.0 

11  years 1,705,081  1,016  59-6 

12  years 1,912,061  1,764  92.3 

13  years 1,773,343  2,402  135.5 

14  years 1,848,122  3,169  171. 5 

15  to  17  years 5,372,176  i5,793  294.0 

15  years 1,721,225  3,778  219.5 

16  years 1,864,711  4,914  263 .5 

17  years 1,786,240  7,101  397.5 

18  to  20  years 5,546,049  35,^97  643 . 6 

18  years 1,928,366  11,033  572.1 

19  years 1,763,061  1 2,362  701 . 2 

20  years 1,854,622  12,302  663.2 

21  to  24  years 7,202,362  64,221  891 . 7 

25  to  34  years 15,152,188  129,974  857.8 

35  to  44  years 11,657,687  99,023  849.4 

45  to  54  years 8,369,988  56,230  671 . 8 

55  to  64  years 5,054,101  22,408  443-4 

65  years  and  over 3,949,524  7,718  i95  -4 

Age  not  reported 169,055  53,241  .... 

This  table  indicates  that  the  criminality  rises  rapidly  until 
the  age  period  of  21  to  24  years,  remains  high  until  about  45 
years  of  age,  and  then  falls  rapidly.    But  it  must  be  remembered 


JUVENILE   CRIMINALITY  211 

that  this  table  includes  only  the  offenders  who  were  sent  to 
prison,  and  omits  those  who  were  fined,  or  put  on  probation, 
or  whose  sentences  were  suspended.  Consequently,  it  probably 
exaggerates  adult  criminality  in  proportion  to  juvenile  crimi- 
nality. 

The  foHowing  table  gives  some  indication  of  the  distribution 
of  criminals  in  age  groups  in  Germany:  —  ^ 

Convictions  in  Germany  1S86-1895  per  100,000  Civilians  of  the  Same 
Age  and  Sex 

(For  crimes  and  offenses  against  national  laws  except  evasion  of 
military  service) 

Male  convicts 1847.03         Female  convicts 380.42 

12  to  18  years 1032.72            12  to  18  years 229.56 

3291-04             18   "  21       "    443-59 

-   3327-28            21    "  25       "    443-58 

.  .• 2928.12             25   "30      "    482.41 

2259 .  13            30   "  40      "    522.65 

1651.22            40   "  50      "    489.40 

1068.39            50   "  60      "    314-74 

571-75    '        60   "  70      "    153-03 

70  years  and  ovc/ 227 .  25             70  years  and  over 58  •  25 

According  to  the  above  table  criminality  among  the  males 
increases  rapidly  and  is  at  its  highest  point  relatively  in  the 
age  group  from  21  to  25  years  of  age.  It  falls  off  rapidly  after 
the  age  of  25.  Among  the  females  the  criminality  is  at  its  high- 
est point  relatively  in  the  age  group  from  30  to  40  years  of  age. 
It  does  not  increase  as  rapidly  as  male  criminality,  and  de- 
creases more  slowly.  Female  criminality  is  shifted  along  further 
on  the  age  scale  than  male  criminality.  This  table  is  of  great 
significance  because  it  seems  to  indicate  that  the  highest  crimi- 
nality is  reached  just  after  adulthood  is  attained. 

Criminal  statistics  reveal  some  of  the  peculiarities  of  juvenile 
crimes,  which  will  in  turn  aid  us  in  depicting  the  traits  of  ju- 
venile criminals.  I  shall,  therefore,  cite  some  tables  which 
classify  the  crimes  committed  by  juvenile  criminals  and  indicate 
their  relative  frequency. 

^  Slatistik  des  Detdschen  Reichs,  Neue  Folge,  LXXXTII,  II,  pp.  26  and  27. 


18 

*  21 

21 

'  25 

25 

'  30 

30 

'40 

40 

'50 

50 

'60 

60 

'  70 

212 


CRIMINOLOGY 


Distribution  of  Commitments  to  Prison  According  to  Age  and  Offense 
IN  the  United  States  in  iqio  ' 

Total  Per  cent  of  total  6s 

{excluding     Under      18-24  25-34  35-44      45-^4  55-64      yrs. 

Selected  offense          age  not  re-    18  yrs.        yrs.    .  yrs.         yrs.         yrs.  yrs.        and 

ported)  over 

All  offenses 440,693          5.8        22.7  29.5  22.5        12.8  5.1         1.8 

Adultery 1.066          2.1        27.8  39.9  23.2          5.1  1.9        0.2 

Assault 20,623           3.5         31.6  36.2  17.9           7.7  2.4         0.7 

Burglary 8,673         18.0        42.5  24.3  10.1           3.8  0.9         0.3 

Carrying  concealed 

weapons 369          3.6        39.8  36.0  14.6          4.6  1.1         0.3 

Contempt 849           1.3         19.1  30.7  26.7         16.7  4.1         1.3 

Delinquency 2,053         95.1           4.8  0.1  *               

Disorderly  conduct...     85,527           3.5         26.5  31.6  21.8         11.1  4.1         1.5 

Drunkenness 148,300          0.3          9.8  28.1  30.8         20.0  8.2         2.8 

Embezzlement 923          4.3         25.6  36.7  21.5           8.5  2.6        0.9 

Forgery 2,091           6.7         35.9  32.7  14.8           7.4  1.9         0.7 

Fornication 3,017         14.3         30.5  31.4  15.4           6.3  1.8         0.3 

Fraud 8,225           6.2         44.9  28.6  12.4          5.3  2.0        0.6 

Gambling 5,471           4.7         40.9  36.8  13.1           3.4  0.9         0.2 

Homicide  (grave) 942           3.0        31.2  36.4  18.9          7.1  2.7         0.7 

Homicide  (lesser) 1,887           5.0        32.0  35.5  16.4           7.3  3.1         0.8 

Incorrigibility 3,068        95.4          4.5  *  •                

Injuries  to  common 

carriers 1,140         11.8         44.3  25.5  13.2           3.8  1.4 

Keeping  house  of  ill 

fame 971           1.0         18.4  37.9  26.7         11.1  4.0         0.8 

Larceny 39,569         15.2         34.8  27.5  13.7           6.0  2.1         0.6 

Malicious  mischief ... .        1,609         12.4        31.3  27.2  17.7           7.3  3.0         1.0 

Non-support 2,727           0.3         13.9  36.0  32.5         13.9  3.3         0.2 

Obscenity 1,777           3.6         22.9  32.4  22.1         12.3  5.5         1.4 

Profanity 1,122           5.4         29.4  31.4  20.3           8.4  4.0         1.1 

Prostitution 2,812          4.7         40.7  36.0  14.8          3.4  0.4 

Rape 1,438          9.5         32.0  26.4  16.8          8.3  5.1         1.9 

Robbery 1,677           8.1         45.8  33.5  10.3          2.0  0.4         0.1 

Trespassing 7,263          8.6        44.8  28.4  11.7          4.7  1.5        0.3 

Truancy 1,555         99.8          0.2  

Vagrancy 45,112           3.8         23.4  29.1  21.2         13.2  6.7         2.8 

Violating  city 

ordinances 4,724          4.3         27.8  30.8  20.8         10.5  4.4         1.5 

Violating  liquor  laws. .        6,396           0.7         17.4  34.8  25.4         14.1  5.4         2.2 

*  Less  than  one-tenth  of  1  per  cent. 

Age  Distribution  of  Convictions  for  Various  Crimes  in  Germany* 

Per  100,000  Civilians  from 

Convicted  in  igoi  of  12  to  14        14  to  18  18  Years 

Years            Years  and  Over 

All  crimes  and  offenses 405 .  2            919 .  i  1361 . 7 

Petit  larceny 230 . 4            J2p .  4  208 . 4 

Grand  larceny 47-8             65 .0  28.2 

Receiving  stolen  goods 14 •  7              19 -7  i9-7 

Fraud 9.7             41.3  70.6 

Simple  assault  and  battery 3.7              25.1  79 -i 

Aggravated  assault  and  battery 24.9            167.2  274.5 

Malicious  mischief 30. 2             57 .2  48 . 3 

Insult 2.6              29.2  165.5 

Indecent  assault  on  children,  etc 3.5              21 .2  12.6 

Arson 2.1               2.6  0.9 

^  U.  S.  Census  Statistics. 

-?  Statistik  des  Deutschen  Reichs,  Neue  Folge,  CXLVI,  II,  p.  50. 


JUVENILE  CRIMINALITY  213 

Italy,  1891-1895  ' 

Crimes  To  100,000  of  Each  Age  Group 

g  to  14         14  to  18        18  to  21 

Simple  theft SQ  •  5°  278 .  89  302 .  86 

Minor  assaults 14-64  83.40  215.04 

Aggravated  theft 3°  •  95  1 28 .  96  157  •  28 

Rebellion i .  25  24 .  94  83 .  58 

Serious  assaults 5.22  28 .  56  82 .  07 

Threats i.ii  15.10  47-71 

Obtaining  money  under  false  pretenses,etc.     1.54  13-96  30.00 

Homicide 0.49  3-97  iS-78 

Rape 1.02  6.36  9.62 

Extortion,  blackmail o .  41  3-55  9  •  07 

Offenses  against  chastity  of  minors  and 

against  public  decency o .  38  2 .  93  5  -  70 

Offenses  against  public  order i.oi  2.14  4-95 

Assassination o .  07  0.75  3 .  55 

Infanticide o .  01  0.02  0.36 

England,  1893-1899  ^ 

Crimes  Number  of  Persons  under  21 

to  the  100  Convictions 

Simple  theft 44  95 

Theft  by  domestics 41 .  80 

House-breaking 38 .  91 

Theft  upon  the  person 28 .  93 

Malicious  mischief 24 .  80 

Extortion 23 .  92 

Crimes  against  morals 23 . 3  2 

Crimes  committed  with  violence 23 .  23 

Forgery 14.93 

Obtaining  money  by  false  pretenses 13  46 

Counterfeiting 13  -  S3 

Assaults 13-21 

Austria,  188 2- 1889  ' 

Crimes  Persons  from  14  to  20  Years  of 

Age  to  the  100  Convicted 

Rape,  etc 32.2 

Aggravated  theft 25.0 

Extortion 24 . 2 

Counterfeiting 17.6 

Infanticide 17.4 

Assassination 14.5 

'  Notizie  complementari  alle  slatistiche  giudiziarie  penali  degli  anni  i8go- 
jSqs,  p.  xlvii. 

-Judicial  Statistics,  England  and  Wales,  Part  I,  Criminal  Statistics,  1899, 
p.  65.        ^ 

'  Cited  in  W.  Bonger,  Criminality  and  Economic  Conditions,  Boston,  1916, 
P-  413- 


214  CRIMINOLOGY 

Austria,  1882-1889  —  Continued 
Crimes  Persons  from  14  to  20  Years  of 

Age  to  the  100  Convicted 

Serious  assaults 14.3 

Defamation 13.0 

Homicide 12.6 

Fraud 10.9 

Lese-majeste 7.0 

The  above  tables  give  further  evidence  of  the  astonishing 
precocity  of  criminals.  The  German  statistics  indicate  that  the 
relative  number  of  criminals  from  14  to  18  years  of  age  is  more 
than  two-thirds  as  great  as  the  relative  number  of  those  who 
are  18  years  and  over.  It  must  be  remembered,  however,  that 
the  latter  group  includes  all  of  the  middle-aged  and  aged  popula- 
tion whose  criminality  is  very  low.  According  to  the  Italian 
statistics  for  certain  kinds  of  offenses  the  relative  criminality 
in  the  age  group  from  14  to  18  years  of  age  is  about  five  times  as 
great  as  in  the  age  group  from  9  to  14  years,  while  the  relative 
criminality  in  the  age  group  from  18  to  21  years  of  age  is  nearly 
twice  as  great  as  in  the  age  group  from  14  to  18  years.  According 
to  the  English  statistics  from  a  fourth  to  nearly  one-half  of  the 
convictions  for  several  important  kinds  of  crime  are  of  persons 
under  21  years  of  age.  According  to  the  Austrian  statistics 
from  a  fourth  to  about  one-third  of  the  convictions  for  several 
crimes  are  of  persons  from  14  to  20  years  of  age. 

Certain  crimes  stand  out  prominently  in  these  statistics  of 
youthful  criminality.  Among  these  are  petit  larceny,  grand 
larceny,  burglary,  and  various  other  kinds  of  thieving;  receiving 
stolen  goods;  malicious  mischief,  etc.  Most  of  these  are  crimes 
which  children  and  adolescents  are  frequently  tempted  to  com- 
mit, and  they  have  not  as  much  power,  on  the  average,  to  resist 
this  temptation  as  adults.  On  the  other  hand,  on  account  of 
their  ignorance  and  lack  of  opportunity  they  are  not  so  likely 
to  commit  crimes  requiring  knowledge  and  skill,  such  as  forgery, 
fraud,  etc. 

It  may  appear  singular  that  sexual  crimes  attain  so  great  a 
prominence  among  the  adolescents  and  older  youths.  But 
this  is  doubtless  due  to  the  fact  that  they  have  not  yet  ac- 
quired much  control  over  the  newly  awakened  sexual  impulses, 
and  also  to  the  fact  that  they  have  not  as  many  opportunities 
for  the  gratification  of  these  impulses  as  adults  have  in  marriage 


JUVENILE   CRIMINALITY  .  215 

and  otherwise.  Furthermore,  it  goes  without  saying  with  re- 
spect to  these  crimes  as  with  respect  to  all  kinds  of  crime  that 
the  young  have  not  as  much  knowledge  and  experience  as  adults 
to  aid  them  in  avoiding  detection.  In  criminal  statistics,  how- 
ever, this  may  be  more  than  compensated  for  by  the  fact  al- 
ready mentioned  that  compassion  for  youth  frequently  leads  to 
failure  to  prosecute  youthful  criminals.  It  must  also  be  re- 
membered that  the  young  have  not  been  subjected  as  much 
as  the  adults  to  a  biological  selective  process  which  will  weed 
out  many  of  the  aments,  dements,  and  insane,  and  to  a  social 
selective  process  which  will  incarcerate  many  of  the  more  dan- 
gerous permanently  or  for  long  periods  of  time  in  asylums  and 
penal  institutions. 

The  above  facts  indicate  that  we  need  no  new  classification 
for  the  types  of  young  criminals.  The  classification  which  I 
have  formulated  in  the  preceding  chapter  will  serve  the  purpose, 
with  certain  qualifications.  The  criminal  ament  is  found  among 
the  young  as  among  adults,  though  in  a  good  many  cases  the 
amentia  does  not  make  itself  apparent  until  later  than  child- 
hood. The  psychopathic  criminal  is  found  among  the  young, 
but  probably  not  so  frequently  as  among  adults,  inasmuch  as 
many  forms  of  insanity  do  not  develop  until  later  in  life.  The. 
percentage  of  professional  criminals  is,  of  course,  low  among 
the  very  young  criminals,  who  have  not  yet  had  enough  time 
and  experience  to  become  professionals.  But  the  percentage  of 
occasional  is  high,  many  of  whom  are  on  their  way  to  become 
professionals. 

There  are  many  accidental  criminals  among  the  young, 
but  not  many  criminals  by  passion,  since  most  of  the  seri- 
ous acts  of  passion  which  constitute  crimes  are  committed 
later  in  life  when  the  powerful  emotions  of  anger,  jealousy, 
envy,  etc.,  have  attained  their  full  scope  and  receive  greater 
stimuli  to  arouse  them.  Evolutive  and  political  criminals  are, 
of  course,  non-existent  among  children,  and  are  comparatively 
rare  among  adolescents,  but  a  considerable  proportion  of  this 
group  of  criminals  is  to  be  found  in  early  adulthood. 

In  Germany  for  all  crimes  and  offenses  against  national  laws 
there  were  convicted  per  100,000  minors  of  the  civil  population 
568  minors  in  1882  and  764  in  1906.^    Accordmg  to  Aschaffen- 
^  Statistik  des  Deutschen  Reichs,  Neue  Folge,  CXLVI,  1, 104. 


2l6  .  CRIMINOLOGY 

burg  there  were  convicted  per  100,000  of  population  1,097  adults 
and  564  minors  between  the  years  1882  and  1886,  and  1,321 
adults  and  736  minors  between  the  years  1902  and  1906.^  The 
increase,  therefore,  among  adults  was  20.4  per  cent  and  among 
minors  was  30.5  per  cent.^  In  Austria  the  number  of  young 
persons  from  11  to  20  years  of  age  convicted  of  crimes  (exclu- 
sive of  the  "contraventions"  or  less  serious  offenses)  increased 
from  1 88 1  to  1899  from  5,865  to  7,680,  or  from  17.5  out  of  every 
1,000  convicted  to  22.8  out  of  every  1,000  convicted.^  In  Belgium 
the  percentage  of  accused  persons  under  21  years  of  age  in- 
creased from  14.1  in  1861  to  20.8  in  1885.'*  In  Italy  the  number 
of  persons  from  9  to  21  years  of  age  who  were  convicted  in- 
creased from  30,108  in  1890  to  39,109  in  1895,  or  from  22.96 
per  cent  of  the  total  number  convicted  in  1890  to  23.28  per 
cent  in  1895.^  This  was  an  increase  of  about  30  per  cent  in  6 
years  which  was  much  greater  than  the  percentage  of  increase 
of  the  total  population.  But  the  period  of  years  covered  is  too 
brief  to  be  of  great  significance. 

As  to  the  extent  of  juvenile  crime  in  France  ®  and  in  England,^ 
there  is  great  uncertainty  whether  the  available  statistics  indi- 
cate an  increase  or  a  decrease  in  these  countries.  There  is  still 
greater  uncertainty  as  to  the  extent  of  juvenile  crime  in  this 
country.^ 

1  G.  Aschaffenburg,  Crime  and  Its  Repression,  Boston,  1913,  p.  148.  He 
does  not  state  whether  these  figures  are  per  100,000  of  total  population  or  of 
adults  and  of  minors. 

2  See  W.  Bonger,  op.  cit.,  pp.  409-410.  Bonger  asserts  that  since  1906, 
juvenile  criminality  has  decreased  in  Germany,  and  intimates  that  the  de- 
crease is  due  to  the  "Fiirsorgeerziehung"  legislation. 

^  W.  Bonger,  op.  cit.,  p.  412. 
^  W.  Bonger,  op.  cit.,  p.  413. 

^  Notizie  complementari  alle  statistiche  giudiziarie  penali  degli  anni  1890- 
1895,  p.  xli. 

*  See,  for  example,  G.  L.  Duprat,  op.  cit.,  pp.  41-47;  W.  Bonger,  op.  cit., 
pp. 414-416. 

^  See,  for  example,  W.  D.  Morrison,  Juvenile  Offenders,  New  York,  1897; 
W.  Bonger,  o/>.  cit.,  p.  411. 

*  Prisoners  and  Juvenile  Delinquents,  1910,  Washington,  1913,  Census 
Bui.  121.  According  to  this  bulletin  there  were  in  the  institutions  for  juve- 
nile delinquents  in  this  country  on  the  first  of  January,  1910,  24,974  in- 
mates, of  whom  19,062  were  males  and  5,912  were  females.  During  the 
year  1910  there  were  committed  to  these  institutions  14,147  persons,  of 
whom  11,971  were  males  and  2,176  were  females.    But  these  figures  give 


JUVENILE   CRIMINALITY  21 7 

There  is  a  widespread  belief,  which  has  been  expressed  by 
many  writers  on  this  subject,  that  juvenile  crime  has  been  in- 
creasing rapidly  during  the  last  few  decades  in  most  civilized 
countries,  more  rapidly  even  than  crime  in  general.  The  above 
figures  suggest  that  this  opinion  may  be  correct,  though  they 
do  not  furnish  conclusive  evidence  of  its  correctness. 

It  should  also  be  noted  that  since  the  beginning  of  the  world 
war  in  1914  juvenile  crime  has  probably  increased  consider- 
ably.^ This  is  to  be  expected  in  every  belligerent  country  for 
several  reasons.  Inasmuch  as  many  fathers  and  big  brothers 
have  gone  to  war,  the  boys  lack  control.  The  increased  demand 
for  labor  enables  them  to  earn  money  readily,  and  they  are 
likely  to  get  into  trouble  while  spending  it.  Furthermore,  the 
police  suppression  of  crime  may  become  somewhat  weakened 
during  war  time. 

Poverty  and  Juvenile  Criminality 

We  shall  now  survey  briefly  the  causes  of  juvenile  criminality, 
especially  the  environmental  factors.  These  factors  have  been 
described  in  earlier  chapters  with  respect  to  criminality  in  gen- 
eral, and  practically  all  that  has  been  said  applies  to  the  young 
as  well  as  to  adults.  The  economic  factors  are  perhaps  the  most 
powerful,  and  it  is  easy  to  discern  the  effect  of  these  factors  upon 
juvenile  crlminahty. 

Poverty  frequently  means  that  the  child  does  not  get  enough 
food,  or  does  not  get  the  right  kinds  of  food.  This  may  lead  to 
a  stunting  of  the  physical  development,  and  is  sure  to  weaken 
the  resistance  against  disease  and  to  strengthen  predispositions 
to  various  physical  and  mental  abnormalities.  Poverty  usually 
means  a  lack  of  adequate  facilities  for  mental  education,  and 
may  also  mean  a  comparatively  small  amount  of  moral  training. 

Poverty  usually  leads  to,  or,  to  say  the  least,  is  accompanied 
by,  a  congestion  of  population  in  large  cities.  This  means  that 
the  homes  of  the  poor  are  crowded  to  such  a  degree  as  to  be 
physically  vmhealthful,  and  mentally  and  morally  degrading. 

very  slight  indication  of  the  total  number  of  juvenile  criminals  in  this  coun- 
try. It  is  impossible  to  compare  these  figures  directly  with  those  in  the 
special  report  for  the  year  1904,  because  the  classification  was  changed. 

'  Reports  to  this  efifect  have  come  from  England  and  Germany.  (See  the 
London  Times,  November  8,  191 6;  New  York  Times,  July  7,  19 17.) 


2l8  CRIMINOLOGY 

On  account  of  the  congestion,  also,  there  is  lack  of  space  and  of 
other  facilities  for  recreation,  so  that  the  children  of  the  poor 
are  forced  out  upon  the  street  to  play.  Thus  they  have  unusual 
opportunities  to  observe  crime  and  are  in  danger  of  acquiring 
habits  of  drinking,  gambling,  and  other  forms  of  vice.  In  some 
cases  they  fall  under  the  influence  of  criminals  who  need  the 
assistance  of  young  accomplices,  and  who  wish  to  train  them  to 
be  professional  criminals  who  will  work  under  their  direction. 
So  that  the  children  of  the  poor  are  placed  under  greater  pres- 
sure, on  the  whole,  to  become  criminals,  prostitutes,  gamblers, 
drunkards,  etc.,  than  are  the  children  of  the  rich. 

Among  the  poor  both  parents  are  frequently  forced  to  work  in 
order  to  earn  enough  to  support  the  family.  In  such  families 
the  children  are  left  without  parental  care,  and  frequently  with- 
out any  other  kind  of  care  for  much  of  the  time.  Without  ad- 
equate restraint  and  guidance  these  children  are  likely  to  run 
wild,  and  very  soon  to  get  into  mischief. 

Furthermore,  the  children  of  the  poor  frequently  are  forced  to 
go  to  work  very  young  in  order  to  help  support  the  family. 
Since  the  industrial  revolution  of  the  eighteenth  and  nineteenth 
centuries  there  has  been  an  enormous  amount  of  child  labor 
which  has  not  yet  been  prevented  by  legislation.^  It  is  difficult 
to  secure  statistical  evidence  of  the  influence  of  this  child  labor 
upon  crime.^  But  the  consensus  of  opinion  among  the  students 
of  the  subject  seems  to  be  that  child  labor  is  a  prolific  cause  of 
crime.  This  is  not,  of  course,  because  labor  in  itself  causes  crim- 
inal conduct.  But  labor  for  young  children  is  very  likely  to 
stunt  their  growth  and  do  them  other  physical  injury.  It  is 
almost  certain  to  interfere  with  their  education,  and  thus  to 
impede  their  mental  development.  In  some  occupations  it  is 
very  likely  to  bring  them  under  immoral  and  sometimes  crim- 
inal influences,  as,  for  example,  in  the  work  of  newsboys,  ped- 
dlers, bootblacks,  messengers,  etc.^ 

^  I  have  summarized  the  statistics  of  child  labor  in  the  United  States  in 
my  Poverty  and  Social  Progress,  New  York,  1916,  pp.  138-139. 

^  For  numerous  statistics  on  this  subject  see  the  Report  on  Condition  of 
Woman  and  Child  Wage-Earners  in  the  U.  S.,  Vol.  VIII,  "Juvenile  Delin- 
quency and  Its  Relation  to  Employment,"  Washington,  191 1.  (Senate  docu- 
ment 645,  6ist  Cong.,  2d  Sess.)  See  also  Vol.  VII  of  this  report  on  "Condi- 
tions under  which  Children  Leave  School  to  Go  to  Work,"  Washington,  iqio. 

*  "The  paid  labor  of  the  young  has  a  bad  influence  in  several  ways.    First, 


juvenile  criminality  219 

Parentage  and  Home  Life 

Many  of  the  immediate  causes  of  juvenile  criminality  can 
be  found  in  the  parentage  and  home  life  of  the  children  and 
adolescents.^  Most  of  these  causes  can  in  turn  be  traced  back 
to  the  economic  and  other  factors  which  we  have  described. 
Many  parents,  especially  among  the  poor,  are  ignorant,  and  are 
therefore  incapable  of  giving  their  offspring  wise  guidance  and 
training  during  their  youth.  Their  children  are  likely  to  go 
astray  on  account  of  the  ignorance  of  their  parents.  A  smaller 
number  of  parents  are  immoral  and  vicious.  These  parents  fur- 
nish a  bad  example  for  their  children,  and  in  a  few  cases  delib- 
erately teach  their  children  to  be  vicious  and  criminal.  Some 
avaricious  parents  force  their  children  to  work  even  when  there 
is  no  need  for  their  earnings.  As  has  already  been  noted,  when 
both  parents  are  forced  to  work,  the  children  lose  many  of  the 
benefits  of  parental  care.  When  the  children  themselves  are 
forced  to  work,  they  lose  many  of  the  benefits  of  home  life. 

Many  families  are  broken  up  in  part  or  entirely  by  widowhood, 
desertion,  divorce,  etc.^  Divorce  probably  does  not  have  much 
effect  upon  crime,  because  the  economic  well-being  of  the  children 
is  not  injured  usually  by  the  divorce.  While  these  children  lose 
the  benefits  of  bi-parental  rearing,  they  are  frequently  benefited 
by  no  longer  being  forced  to  witness  the  infelicities  arising  out  of 
the  ill-mated  unions  of  their  parents. 

But  widowhood  and  desertion  are  very  likely  to  lead  to  crim- 
inality on  the  part  of  the  children  in  the  families  thus  affected. 
This  is  not  so  likely  to  happen  where  the  male  parent  is  widowed 

it  forces  them,  while  they  are  still  very  young,  to  think  only  of  their  own 
interests;  then,  brought  into  contact  with  persons  who  are  rough  and  indif- 
ferent to  their  well-being,  they  follow  these  only  too  quickly,  because  of 
their  imitative  tendencies,  in  their  bad  habits,  grossness  of  speech,  etc. 
Finally,  the  paid  labor  of  the  young  makes  them  more  or  less  independent 
at  an  age  where  they  have  the  greatest  need  of  guidance."  (W.  Bonger, 
op.  cil.,  p.  407.) 

^  For  graphic  descriptions  of  these  domestic  causes  of  juvenile  criminality, 
see,  Sophonisba  P.  Breckinridge  and  Edith  Abbott,  The  Delinquent  Child 
and  the  Home,  New  York,  191 2;  L.  Albanel,  Le  crime  dans  la  favtille,  Paris, 
1900.  See  also  certain  chapters  in  C.  E.  B.  Russell  and  L.  M.  Rigby,  The 
Making  of  the  Criminal,  London,  1906;  G.  L.  Duprat,  op.  cit. 

*  For  statistics  on  this  subject  see  my  Poverty  and  Social  Progress,  Chap. 
XV,  entitled  "Domestic  and  Matrimonial  Maladjustment." 


220  CRIMINOLOGY 

or  deserted,  because  ordinarily  he  is  able  to  continue  supporting 
his  children,  who  lose  only  the  maternal  care.  But  when  the 
female  parent  is  widowed  or  deserted,  her  position  is  usually 
much  more  precarious.  Frequently  she  is  forced  to  go  out  to 
work,  thus  leaving  her  children  without  parental  care.  But 
even  then  she  is  usually  not  able  to  support  herself  and  her 
children  fully,  so  that  the  family  becomes  dependent  at  least  in 
part,  and  may  be  broken  up  entirely. 

The  most  complete  breaking  up  of  the  family  and  of  the  home 
life  comes  when  both  parents  are  lost  and  the  children  are  left 
orphans.  Then  if  they  are  not  taken  into  the  private  homes 
of  relatives  or  others,  or  into  institutions,  they  are  in  great 
danger  of  embarking  upon  careers  of  vagrancy,  prostitution,  and 
crime. 

Another  factor  in  juvenile  criminality  which  should  be  men- 
tioned in  this  connection  is  illegitimacy.  It  has  long  been  noted 
that  there  is  a  disproportionately  high  number  of  persons  of 
illegitimate  birth  in  prisons  and  reformatories  and  among  pros- 
titutes.^ This  is  probably  due  in  part  to  the  fact  that  mentally 
jdefective  persons,  and  especially  feebleminded  girls  and  women, 
are  much  more  likely  to  have  illegitimate  children  than  the 
mentally  normal.  Consequently,  there  is  a  much  higher  per- 
centage of  mental  defectiveness  among  the  illegitimate  than 
among  the  general  population.  But  it  is  also  due  to  the  facts  that 
a  bastard  almost  invariably  has  the  care  of  only  the  maternal 
parent,  and  frequently  not  even  her  care;  is  brought  up  in  dire 
poverty;  and  lives  under  a  grave  social  disability  which  greatly 
hampers  him  in  his  career. 

Education  and  Crime 

It  goes  without  saying  that  one  of  the  most  important  factors 
in  the  rearing  of  a  child  is  his  education.  This  is  to  be  acquired 
partly  in  the  home;  but  more  particularly  in  the  school,  which  is 
the  special  agency  of  education.  The  purpose  of  education  is  to 
prepare  the  child  for  his  life  and  career.  The  first  requisite  in 
any  efficient  system  of  education  is  that  the  child  be  taught  the 
nature  of  the  world  in  which  he  lives,  in  order  that  he  may  be 

^  For  statistics  on  this  subject,  see  my  Poverty  and  Social  Progress,  pp.  210- 
213;  and  G.  Aschaffenburg,  op.  cit.,  pp.  1 29-131, 


JUVENILE   CRIMINALITY  221 

able  to  orient  himself  therein.  This  means  that  he  must  be 
given  at  least  a  minimum  amount  of  information  from  the 
sciences  of  physics,  chemistry,  astronomy,  and  geology  to 
enable  him  to  understand  the  nature  of  the  physical  environ- 
ment in  which  he  lives,  and  the  natural  laws  which  govern 
therein.  He  must  be  taught  enough  biology  and  psychology  to 
grasp  the  significance  of  the  evolutionary  process,  and  to  under- 
stand in  a  measure  his  own  nature  and  that  of  his  fellows.  He 
must  be  taught  something  of  social  evolution,  and  given  a  fairly 
clear  understanding  of  social  organization,  in  order  that  he  may 
comprehend  the  nature  of  the  society  in  which  he  lives.  If  the 
system  of  education  is  given  a  sound  scientific  foundation,  the 
individual  is  not  likely  to  be  misled  by  animistic  explanations  of 
natural  phenomena,  or  to  be  induced  to  use  magical  and  other 
superstitious  methods  with  the  purpose  of  influencing  natural 
processes. 

An  education  of  this  nature  is  intellectual  in  its  character, 
and  it  may  be  thought  by  some  that  it  can  have  no  moral  in- 
fluence. But  it  is  easy  to  show  that  this  education  has  also  the 
highest  moral  value.  I  have  already  had  occasion  to  state 
several  times  that  immorality,  viciousness,  and  criminality 
frequently  are  due  to  failure  on  the  part  of  the  individual  to 
adjust  himself  to  his  surroundings,  and  this  failure  is  frequently 
due  to  ignorance  as  to  the  nature  of  these  surroundings.  With 
an  education  such  as  is  outlined  above  this  ignorance  would 
not  exist,  except  in  the  cases  of  those  who  are  too  feebleminded 
to  acquire  it,  and  this  important  cause  of  moral  maladjustment 
would  disappear.  It  may  not  be  apparent  at  first  sight  how  this 
would  result  from  the  study  of  the  inorganic  sciences.  But  it  is 
evident  that  it  would  be  a  direct  result  of  the  study  of  the  psy- 
chological and  social  sciences.  These  sciences  furnish  an  in- 
sight into  human  nature  and  the  nature  of  society,  and  thus 
reveal  the  nature  of  and  the  justification  for  moral  ideas  and 
laws,  in  other  words,  the  means  of  social  control.  Furthermore, 
the  study  of  these  sciences,  because  of  their  subject-matter, 
arouses  sympathetic  emotions  which  are  not  aroused  to  the 
same  extent  by  the  inorganic  sciences,  and  thus  an  additional 
dynamic  force  is  given  to  the  effects  from  their  study. 

Indeed,  when  all  things  are  taken  into  consideration,  it  be- 
comes evident  that  so-called  "moral"  education  must  be  in  the 


222  CRIMINOLOGY 

main  intellectual  in  its  character.*  Inasmuch  as  civilization 
has  reached  the  scientific  stage  in  its  progress,  moral  ideas  can 
no  longer  be  based  upon  metaphysical  speculations  or  theolog- 
ical dogmas,  but  only  upon  inductive  knowledge.  In  the  pres- 
ent age  genuine  morality  can  arise  only  upon  the  basis  of  a 
comprehension  of  natural  phenomena  such  as  can  be  acquired 
only  through  the  educational  system  outlined  above,  and  phys- 
ical living  conditions  which  permit  of  the  development  of  per- 
sonality and  of  a  fair  degree  of  freedom  of  choice  and  initiative. 
In  addition  to  the  general  education  outlined  above  is  needed 
training  for  life  work,  namely,  vocational  education.  Under 
present  conditions  the  great  majority  of  young  persons  drift 
more  or  less  aimlessly  into  occupations  for  which  they  have  not 
been  specially  trained,  and  for  which  they  are  not  necessarily 
well  fitted.  Thus  the  chances  of  failure  are  greatly  increased, 
and  many  of  them  eventually  become  unemployed,  and  some  of 
them  become  vagrants  and  are  in  great  danger  of  becoming 
criminals.  I  have  already  shown  how  important  a  factor  in 
the  causation  of  criminality  is  lack  of  economic  success.    Con- 

^  De  Lanessan  expresses  the  opinion  that  intellectual  training  has  much 
greater  moral  efficacy  than  so-called  "moral"  training,  among  other  rea- 
sons because  it  develops  in  the  child  the  love  for  work  which  is  in  itself  a 
powerful  safeguard  against  immorality,  viciousness,  and  criminality: 

"Les  enfants  auxquels  les  professeurs  ou  les  instituteurs  parviennent  & 
inculquer  le  gofit  du  travail  echapperont  presque  tous  aux  dangers  de  con- 
tagion auxquels  ils  sont  exposes,  lis  y  Echapperont  presque  k  coup  str,  si 
leur  famille  leur  a  deji  inculqufi  ce  goiit  pendant  le  premier  kge.  Aussi, 
les  educateurs  doivent-ils  se  donner  pour  but,  non  d'apprendre  beaucoup 
de  choses  a  leurs  elfeves,  ma  is  de  leur  inspirer  I'amour  de  la  science,  afin 
qu'ils  en  arrivent  k  aimer  le  travail.  Et  c'est  pourquoi  je  preconise  les 
sciences  d'observation  et  d'experience  comme  base  fondamentale  de  I'en- 
seignement  primaire,  aussi  bien  que  de  I'enseignement  secondaire  ou  su- 
p^rieur.  Par  elles,  I'enfant  acquiert  sans  peine  le  goflt  du  travail,  parce 
qu'il  est  essentiellement  curieux  et  qu'il  est  pouss6  par  le  besoin  d'activitfi, 
d6s  le  premier  kge,  k  exercer  tous  ses  sens."  (J.  L.  de  Lanessan,  La  lutle 
contre  le  crime,  Paris,  igio,  p.  loo.) 

"S'il  m'etait  possible  de  condenser  en  quelque  brSve  formule  ces  con- 
siderations, je  dirais  volontiers  que  le  plus  sftr  moyen  de  faire  des  honnfetes 
gens,  c'est  d'inspirer  aux  enfants,  des  leur  premier  ftge,  I'amour  du  travail. 
L'homme  le  plus  laborieux  pourra,  il  est  vrai,  en  raison  de  son  Egotsme  nat- 
urel  et  des  passions  qui  en  naissent  et  sous  I'influence  de  quelque  excita- 
tion exterieure,  devenir  un  criminel  d'occasion,  mais  il  ne  deviendra  jamais, 
quelle  que  soit  son  h6r6dit6  physiologique,  un  professional  du  crime."  {Op. 
cit.,  p.  loi.) 


JUVENILE  CRIMINALITY  223 

sequently,  there  should  be  adequate  facilities  for  vocational 
training  for  every  youthful  person  in  society.  But  in  addition 
to  this  system  of  vocational  training  there  must  be  a  place  in 
the  economic  system  for  every  new  worker,  for  no  amount  of 
such  training  can  be  of  any  value  if  the  student  cannot  use  it 
ultimately  in  productive  labor.  So  that  with  the  improvement 
of  the  educational  system  should  come  a  reorganization  of  the 
economic  system  which  will  eliminate  unemployment,  and  will 
make  possible  the  utilization  of  all  of  the  available  labor  supply 
of  society. 

If  we  consider  the  existing  educational  facilities,  it  is  obvious 
how  inadequate  and  ineffective  these  facilities  are.  We  have 
already  noted  the  defects  and  inadequacies  of  the  homes  of  the 
poor  as  educational  forces.  But  the  homes  of  the  middle  and 
upper  classes  frequently  are  little  better.  In  how  many  of  these 
homes  are  the  children  trained  to  take  their  places  in  the  larger 
society  to  which  they  are  eventually  to  belong  ?  On  the  contrary, 
on  account  of  the  narrow  outlook  of  the  majority  of  their  parents, 
especially  of  the  mothers,  these  homes  are  all  too  frequently 
schools  of  malicious  gossip,  scandalmongering,  backbiting,  and 
other  petty  vices  which  in  their  aggregate  cause  an  enormous 
amount  of  unhappiness  and  social  maladjustment,  and  some- 
times lead  to  criminal  conduct.  The  only  kind  of  preparation 
for  the  larger  social  life  which  is  given  in  many  of  these  homes 
is  the  conventional  training  in  formal  courtesy,  which  consists 
largely  of  puerile  and  banal  rules  with  regard  to  non-essentials 
which  aid  little  or  not  at  all  in  promoting  social  harmony.^- 

^  See,  for  example,  Edith  B.  Ordway,  The  Eliqueite  of  To-Day,  New  York, 
1913.  This  recent  treatise  on  etiquette  contains  a  few  true  but  trite  aph- 
orisms which  belong  to  genuine  courtesy,  but  consists  mainly  of  the  puerili- 
ties and  banalities  of  formal  courtesy.  From  the  numerous  examples  of  the 
latter  I  have  gleaned  a  few  of  the  instructions  issued  by  this  writer  to  her 
naive  and  ingenuous  readers. 

For  etiquette  at  the  table  the  reader  is  informed  that  "it  is  not  permis- 
sible to  eat  peas  with  a  spoon,"  and  that  "lettuce,  cress,  and  chicory  are 
never  cut  with  a  knife,  but  rolled  up  on  the  fork  and  so  conveyed  to  the 
mouth."  For  behavior  in  public  the  readers,  male  and  female,  are  instructed 
as  follows:  "Upon  the  street  a  gentleman  always  takes  the  outside  of  the 
walk,  when  with  a  lady,  the  custom  having  come  down  from  the  days  when 
dangers  beset  the  path,  and  the  man  had  to  be  at  the  point  of  vantage 
for  the  protection  of  the  woman.  When  a  married  woman  and  an  unmarried 
girl  are  walking  together,  the  married  woman  takes  the  outside  of  the  walk." 


224  '  CRIMINOLOGY 

The  training  in  genuine  courtesy  which  is  essential  as  a  prepara- 
tion for  kindly  and  harmonious  social  relations  is  in  the  main 
lacking. 

Little  can  be  done  by  means  of  direct  measures  to  raise  the 
moral  tone  of  the  vast  majority  of  homes.  This  can  come  only 
indirectly  through  an  improvement  in  the  economic  conditions 
of  the  great  mass  of  the  people,  and  by  rendering  the  educational 
system  more  efficient.  But  much  can  be  done  directly  to  im- 
prove the  schools,  because  most  of  the  schools  in  civilized  coun- 
tries are  now  under  the  direction  of  the  state,  and  an  enlightened 
government  can  raise  very  rapidly  the  intellectual  and  moral 
standards  in  these  schools. 

It  is  a  well-known  fact  that  at  present  most  schools  are  very 
inefficient,  many  of  them  being  almost  as  ineffective  as  the 
homes.  These  schools  are  inefficient  because  they  fail  to  teach 
their  pupils  the  nature  of  the  world  in  which  they  live,  because 
they  do  not  train  them  for  their  careers,  because  they  do  not 
develop  in  them  a  love  for  suitable  labor,  and  because  they  fail 
to  interest  them  in  their  studies.  These  failures  are  due  to  the 
nature  of  many  of  the  subjects  taught,  to  the  character  of  the 
pedagogical  methods  used,  to  the  lack  of  vocational  training, 
and  to  the  general  ignorance  and  lack  of  training  of  most  of  the 
teachers. 

In  such  schools  as  now  exist  it  is  impossible  to  put  into  effect 
the  educational  system  which  is  outUned  above,  so  that  young 
persons  are  being  sent  out  into  the  world  with  a  preparation 
much  below  what  they  might  receive  in  a  better  school  system. 
Furthermore,  on  account  of  lack  of  interest  in  their  studies  many 
pupils  become  truants  before  they  leave  school,  and  some  of 
these  become  vagrants  and  eventually  graduate  into  a  life  of 
crime. 

I  have  already  pointed  out  the  high  moral  value  of  the  intel- 
lectual education  to  be  received  in  the  schools.  But  the  school 
life  and  discipline  has  great  moral  value  in  other  respects  as 
well.  In  fact,  in  some  respects  the  moral  training  received  in 
the  school  is  superior  to  that  received  in  the  home.    In  the  home 

With  respect  to  "the  art  of  being  a  guest"  the  following  solemn  injunction 
is  laid  upon  the  reader:  "A  formal  dinner  is  one  of  the  most  solemn  obliga- 
tions of  society.  After  having  once  accepted  the  invitation,  only  death 
or  mortal  illness  is  an  excuse  for  not  attending." 


JUVENILE  CRIMINALITY  225 

the  deep  but  narrow  filial  and  fraternal  emotions  are  aroused. 
But  in  the  school  life  much  broader  but  not  so  profound  social 
emotions  are  aroused,  which  are  in  some  ways  of  greater  value 
for  the  later  life  of  the  child  in  society  at  large.  In  the  school  the 
child  is  brought  into  touch  with  a  greater  number  of  and  more 
conflicting  interests  than  in  the  home,  and  is  usually  forced  to 
adopt  a  more  social  point  of  view  than  in  the  home,  where  a 
socially  selfish  attitude  is  likely  to  be  encouraged.  There  is 
doubtless  many  a  child  who  is  morally  successful  in  his  home 
life,  but  who  would  be  a  moral  failure  in  his  life  in  society  if  he 
did  not  receive  the  school  training  and  discipline.^ 

It  is  impossible  to  measure  directly  the  influence  of  faulty 
education  upon  criminality.  Numerous  statistics  have  been 
secured  which  indicate  that  the  percentage  of  illiteracy  among 
criminals  is  much  higher  than  it  is  among  the  general  population.^ 
This  seems  to  indicate  a  causal  relation  between  ignorance  and 
criminality.  Some  may  account  for  this  association  between 
ignorance  and  criminality  by  the  fact  that  poverty  causes  much 
of  the  crime,  and  that  the  poor  are  likely  to  be  ignorant  because 
they  lack  opportunities  to  be  educated.  But  the  truth  probably 
is  that  ignorance  gives  rise  to  crime  both  directly  and  also 
through  the  poverty  which  it  causes. 

It  has  been  contended  by  a  few  writers  that  ignorance  is  not 
a  cause  of  crime,  because  crime  has  apparently  increased  in 
recent  years  even  though  illiteracy  has  decreased.^  But  in 
Chapter  VIII I  have  already  pointed  out  that  it  seems  to  be  in- 
evitable that  the  social  readjustment  required  for  the  progress 

^  AschafiFenbiirg  expresses  the  opinion  that  the  school  furnishes  more 
moral  training  then  the  home:  — 

"As  far  as  the  development  of  altruistic  modes  of  thought  are  concerned, 
I  am  inclined  to  attach  still  greater  importance  to  the  school  than  to  the 
family.  The  school  must  not  and  cannot  take  the  place  of  the  home,  but, 
within  the  close  circle  of  family  life,  training  and  education  are,  after  all, 
only  possible  to  a  limited  extent,  because  encroachments  on  others'  spheres 
of  interest  can  be  but  slight  in  nature.  Companionship  with  others  of  the 
same  age  in  school,  however,  entails  innumerable  conflicts  which  arouse  in 
the  child  the  indistinct  desire  to  have  his  interests  protected  against  others, 
and  also  awaken  in  him  an  understanding  of  the  necessity  of  adapting  him- 
self to  others,  to  his  surroundings,  we  might  say,  to  the  State  on  a  small 
scale."    (G.  Aschaffenburg,  op.  cit.,  pp.  139-140.) 

2  See,  for  example,  W.  Bonger,  op.  cit.,  pp.  425-434,  483. 

'  See,  for  example,  R.  Garofalo,  Criminology,  Boston,  1914,  pp.  137-140. 


226  CRIMINOLOGY 

of  civilization  should  cause  some  increase  of  crime.  Further- 
more, it  must  be  borne  in  mind  that  the  percentage  of  iUiteracy 
among  the  criminals  still  remains  high,  even  though  the  general 
average  of  education  is  rising.-^ 

It  has  also  been  contended  by  some  writers  that  education 
aids  criminals  in  their  illegal  activities.  It  goes  without  saying 
that  there  are  certain  kinds  of  crime,  such  as  forgery,  embez- 
zlement, fraud,  etc.,  which  require  a  good  deal  of  knowledge 
and  intelligence.  But  these  crimes  are  probably  more  than 
counterbalanced  by  the  crimes,  which,  owing  to  the  ignorance 
of  their  perpetrators,  are  so  stupid  as  to  be  foolish  even  from 
the  point  of  view  of  the  criminals  themselves.  And  in  any  case, 
it  would  be  the  most  egregious  folly  to  argue  in  favor  of  keeping 
the  populace  uneducated  and  ignorant  in  order  to  keep  from  a 
number  of  professional  criminals  the  knowledge  which  would 
enable  them  to  commit  some  of  the  higher  types  of  crimes. 

Recreation  and  Crime 

Lack  of  adequate  and  suitable  recreational  facilities  has 
caused  much  juvenile  criminality.  This  has  been  especially 
true  in  the  city.  Many  a  city  child  has  had  only  the  street  in 
which  to  play.  Here  he  has  been  exposed  to  many  immoral  and 
vicious  suggestions  and  temptations.  Many  first  violations 
of  the  law  have  taken  place  when  playing  in  the  street.  Some- 
times the  violation  was  no  more  than  an  attempt  to  satisfy  the 
natiural  and  healthful  impulse  to  play  by  playing  baseball  or 
some  other  game  forbidden  by  the  law.  Sometimes  it  was 
breaking  a  window,  or  petty  theft  from  a  peddler  or  from  a 
store  window.     Frequently  these  offenses  are  no  more  than 

1  Lombroso  sums  up  his  explanation  of  how  education  is  a  force  both  for 
and  against  crime  in  the  following  words: 

"All  this  explains  a  phenomenon  which  appears  at  first  completely  self- 
contradictory,  namely,  that  education  now  increases  crime  and  now  de- 
creases it.  When  education  is  not  yet  diffused  in  a  country  and  has  not 
yet  reached  its  full  development,  it  at  first  increases  all  crimes  except  homi- 
cide. But  when  it  is  widely  disseminated  it  diminishes  all  the  violent  crimes, 
except,  as  we  shall  see,  the  less  serious  crimes,  the  political  crimes,  or  the 
commercial  or  sexual  crimes,  because  these  increase  naturally  with  the  in- 
crease of  human  intercourse,  business,  and  cerebral  activity.  But  educa- 
tion has  an  indisputable  influence  upon  crime  in  changing  its  character  and 
making  it  less  savage."  (C.  Lombroso,  Crime,  Its  Causes  and  Remedies, 
Boston,  191 1,  p.  III.) 


JUVENILE   CRIMINALITY  227 

childish  pranks  from  which  the  child  would  be  saved  if  he  was 
not  forced  out  upon  the  street  to  play.  Street  playing  easily 
leads  to  truancy  and  vagrancy,  which  may  in  turn  lead  to  crime. 

Frequently  the  gregarious  impulses  of  boys  will  lead  them 
to  form  street  gangs,  at  first  with  the  most  innocent  of  pur- 
poses. But  the  power  of  suggestion  and  of  imitation  being 
strong  over  boys,  they  are  soon  led  into  mischievous  pranks 
which  no  boy  would  think  of  doing  alone,  and  these  pranks 
are  very  likely  to  lead  in  turn  to  truly  vicious  and  criminal  acts. 
This  is  especially  likely  to  happen  among  the  immigrant  popula- 
tion of  our  large  cities,  because  the  children  of  the  immigrants 
are  usually  more  Americanized  than  their  parents,  so  that  the 
parental  control  over  them  becomes  weak. 

In  passing,  we  should  also  note  that  the  theater  as  a  form  of 
recreation  has  some  influence  upon  juvenile  criminality.  The 
boy  who  witnesses  melodramatic  plays  and  pictures  in  the 
theatres  and  moving  picture  shows  which  depict  crimes  and 
acts  of  violence  may  be  stimulated  thereby  to  try  to  imitate 
these  acts.  This  is  not  likely  to  happen  to  the  healthy,  normal 
boy  who  has  plenty  of  opportunity  for  healthful  and  active 
recreation  in  which  he  can  expend  all  of  his  surplus  energy  and 
can  satisfy  his  desire  for  excitement  and  adventure.  But  the 
city  boy  who  lacks  these  opportunities  may  be  led  into  attempts 
to  imitate  these  acts,  while  any  boy  who  is  somewhat  abnormal 
physically  and  mentally  in  such  a  way  as  to  be  unusually  sug- 
gestible is  likely  to  make  these  attempts. 

Immigration  and  Crime 

An  important  factor  in  juvenile  criminality  in  this  country 
is  immigration.  The  significent  feature  of  immigration  in  this 
connection  is  that  it  leads  to  a  conflict  between  the  culture  of 
the  incoming  immigrant  and  the  culture  of  this  country.  Es- 
pecially striking  is  this  conflict  when  the  immigrant  is  of  a  dif- 
ferent language,  race,  and  religion  from  the  bulk  of  the  popula- 
tion of  this  country.  When  this  is  the  case,  it  requires  some 
time  for  the  immigrant  to  adjust  his  culture  to  that  of  this 
country.  In  many  cases  he  fails  in  the  main  to  do  so,  and  con- 
sequently is  not  assimilated  to  any  great  extent.  It  is  difficult 
to  ascertain  whether  this  failure  on  the  part  of  the  immigrant 


228  CEIMINOLOGY 

leads  to  an  increase  of  crime.  The  latest  Census  figures  seem 
to  indicate  that  such  is  the  case.  But  there  is  much  reason  to 
believe  that  this  failure  on  the  part  of  the  immigrant  to  become 
assimilated  results  in  an  increase  in  the  criminality  of  his  chil- 
dren. The  experience  of  those  who  have  had  opportunity  to  ob- 
serve many  of  the  immigrant  families  in  our  large  cities  confirms 
this  belief.^ 

^  The  U.  S.  Immigration  Commission  studied  much  of  the  available  statis- 
tics on  the  relation  between  immigration  and  crime  and  arrived  at  the  fol- 
lowing conclusions:  — 

"No  satisfactory  evidence  has  yet  been  produced  to  show  that  immigra- 
tion has  resulted  in  an  increase  in  crime  disproportionate  to  the  increase  in 
adult  population.  Such  comparable  statistics  of  crime  and  population  as 
it  has  been  possible  to  obtain  indicate  that  immigrants  are  less  prone  to 
commit  crime  than  are  native  Americans. 

"The  statistics  do  indicate,  however,  that  the  American-bom  children 
of  immigrants  exceed  the  children  of  natives  in  relative  amount  of  crime. 
It  also  appears  from  data  bearing  on  the  volume  of  crime  that  juvenile 
delinquency  is  more  common  among  immigrants  than  it  is  among  Americans. 
There  are,  however,  two  factors  affecting  these  conclusions.  First,  immi- 
grants are  found  in  greater  proportion  in  cities  than  in  rural  communities, 
and  the  criminality  of  the  children  of  immigrants  is  largely  a  product  of 
the  city.  Second,  the  majority  of  the  juvenile  delinquents  are  found  in 
the  North  Atlantic  States,  where  immigrants  form  a  larger  proportion  of 
the  popiolation  than  in  any  other  section  of  the  country."  {Reports  of  the 
Immigration  Commission,  Vol.  36,  "Immigration  and  Crime,"  Sen.  doc. 
750,  6ist  Cong.,  3d  sess.,  p.  i.) 

But  the  latest  Census  figures  seem  to  disprove  the  first  part  of  the  con- 
clusion of  the  Commission.  According  to  these  figures  the  number  of  native 
whites  committed  to  prison  during  1910  was  253,929,  and  the  number  of 
foreign-born  whites  committed  during  the  same  year  was  99,639.  The 
ratio  of  commitments  per  100,000  of  population  of  the  same  nativity  for 
the  native  whites  was  371.3,  while  for  the  foreign-born  whites  it  was  746.6. 
In  other  words,  the  criminality  of  the  foreign-bom  whites  was  twice  as  great 
as  the  criminality  of  native  whites.  And  inasmuch  as  only  14,147  persons 
were  committed  to  institutions  for  juvenile  delinquents  during  the  same 
year,  only  a  part  of  whom  were  foreign-born,  the  vast  majority  of  the 
foreign-bom  whites  who  were  conmiitted  must  have  been  adults.  So  that 
these  figures  seem  to  indicate  that  the  adult  immigrants  are  much  more 
criminal  than  the  native  bom. 

It  must  be  remembered  that  this  difference  is  explained  in  part  by  the 
difference  in  the  age  composition  of  the  two  groups,  the  native  bom  whites 
including  a  much  larger  proportion  of  young  children  incapable  of  com- 
mitting crimes.  But  this  difference  in  age  composition  can  hardly  explain 
away  the  great  excess  in  the  criminality  of  the  foreign-bom  over  the 
criminality  of  the  native  whites. 


JUVENILE   CRIMINALITY  229 

While  the  immigrant  parent  may  fail  to  become  Americanized, 
his  children  are  sure  to  become  more  or  less  Americanized. 
In  many  cases  this  means  that  the  parent  will  lose  his  influence 
and  control  over  the  children  to  a  considerable  extent.  The 
result  is  that  the  children  are  likely  to  go  astray,  owing  to  lack 
of  parental  control.  This  is  all  the  more  likely  to  happen  when 
the  children,  while  losing  the  moral  standards  of  their  parents, 
fail  to  acquire  in  full  the  moral  standards  of  this  country.  Thus 
cast  adrift  without  adequate  moral  guidance  and  bearings, 
many  of  the  first  generation  born  of  immigrant  parents  have 
fallen  into  careers  of  crime  and  vice.^ 

Imprisonment  and  Juvenile  Criminality 

Still  another  factor  in  the  causation  of  juvenile  criminality 
is  the  effect  of  incarceration  in  industrial  and  reform  schools 
and  in  reformatories.  Sometimes  the  immediate  effect  of  such 
imprisonment  is  very  bad.  But  even  when  these  institutions 
are  well  administered,  so  that  their  inmates  benefit  on  the  whole 
from  their  life  within  them,  these  inmates  are  likely  to  suffer 

1 A  writer  who  observed  these  phenomena  in  New  York  City  has  described 
them  in  the  following  graphic  terms: 

"The  story  of  the  gang  begins.  So  trained  for  the  responsibility  of  citi- 
zenship, robbed  of  home  and  of  childhood,  with  every  prop  knocked  from 
under  him,  all  the  elements  that  make  for  strength  and  character  trodden 
out  in  the  making  of  the  boy,  all  the  high  ambition  of  youth  caricatured  by 
the  slum  and  become  base  passions,  —  so  equipped  he  comes  to  the  business 
of  life.  As  a  'kid'  he  hunted  with  the  pack  in  the  street.  As  a  young  man 
he  trains  with  the  gang,  because  it  furnishes  the  means  of  gratifying  his 
inordinate  vanity,  that  is  the  slum's  counterfeit  for  self-esteem.  Upon  the 
Jacobs  of  other  days  there  was  a  last  hold,  —  the  father's  authority.  Changed 
conditions  have  loosened  that  also.  There  is  a  time  in  every  young  man's 
life  when  he  knows  more  than  his  father.  ...  It  is  the  misfortune  of  the 
slum  boy  of  to-day  that  it  is  really  so,  and  that  he  knows  it.  His  father  is 
an  Italian  or  a  Jew,  and  cannot  even  speak  the  language  to  which  the  boy 
is  bom.  He  has  to  depend  on  him  in  much,  in  the  new  order  of  things.  .  .  . 
That  is  why  the  gang  appears  in  the  second  generation,  the  first  born  upon 
the  soil,  —  a  fighting  gang  if  the  Irishman  is  there  with  his  ready  fist,  a 
thievish  gang  if  it  is  the  East  Side  Jew,  —  and  disappears  in  the  third.  The 
second  boy's  father  is  not 'slow.*  He  has  had  experience.  He  was  clubbed 
into  decency  in  his  own  day,  and  the  night  stick  wore  off  the  glamor  of  the 
thing.  His  grip  on  the  boy  is  good,  and  it  holds."  (J.  A.  Riis,  A  Ten  Years' 
War,  An  Account  of  the  Battle  with  the  Slum  in  New  York,  New  York, 
1900,  pp.  150-152.) 


230  CRIMINOLOGY 

from  difficulties  of  reinstatement  after  leaving  these  institutions. 
Even  when  the  boy  or  girl  has  been  sent  to  the  institution  more 
on  account  of  the  faults  and  failings  of  the  parents  than  of  him- 
self or  herself,  there  is  usually  a  stigma  attached  to  the  ex- 
inmate  of  one  of  these  institutions  which  makes  reinstatement 
difficult,  and  the  boy  or  girl  may  become  confirmed  in  a  life  of 
crime  and  vice.  These  difficulties  have  been  obviated  in  part 
by  the  juvenile  court,  the  probation  system,  etc.,  which  I 
shall  describe  later  in  this  book,. but  still  exist  to  a  deplorable 
degree. 


CHAPTER  XV 
FEMALE  CRIMINALITY 

Apparent  prejwnderance  of  male  over  female  criminality  —  Extent  and 
character  of  female  crimes  —  Conjugal  condition  of  criminals  —  Dif- 
ferences between  men  and  women:  physical  inferiority  and  sympa- 
thetic nature  of  woman;  greater  variability  and  katabolism  of  man  — 
Lenient  treatment  of  female  criminals  —  Woman  shielded  from  crim- 
inality by  her  secluded  life  —  Extra-judicial  female  crimes  —  Prostitu- 
tion and  crime. 

The  available  judicial  and  penal  statistics  of  crime  seem  to 
indicate  that  there  is  much  less  female  than  male  criminality. 
This  is  well  illustrated  in  the  following  table:  —  ^ 

COMPARAOTVE   CRIMINALITY  OF  MeN  AND  WOMEN 

Of  100  Persons  Con- 
victed there  were  Number  of  Men 

Men  Women            to  i  Woman 

Italy  (1885-1889) 84.1  15.9  5.2 

Great  Britain  (1858-64) 79.0  21.0  3.8 

Denmark  and  Norway 80.0  20.0  4.0 

Holland 81.0  19.0  4.5 

Belgium 82.0  18.0  4.5 

France 83.0  17.0  4.8 

Austria 83.0  17.0  4.8 

Baden 84.0  16.0  5-8   . 

Prussia 85.0  15.0  5.7 

Russia 91.0  9.0  10. 1 

Buenos- Aires  (1892) 96.4  3.6  27.1 

Algeria  (1876-80) 96.2  3.8  25.0 

Victoria  (1890) 91.7  8.3  II. o 

New  South  Wales 85. 5  14.5  5.8 

According  to  this  table  there  is  from  four  to  six  times  as 
much  male  criminality  as  there  is  female  criminality.  The 
much  lower  ratios  of  female  criminality  in  Buenos- Aires  and 

^  Adapted  from  C.  Lombroso,  Crime,  Its  Causes  and  Its  Remotes,  Boston, 
1911,  p.  181. 


232  CRIMINOLOGY 

in  Victoria  may  be  due  to  a  disproportionately  small  number  of 
women  in  the  population  and  to  other  conditions  characteristic 
of  new  countries,  and  in  Algeria  to  a  backward  civilization  which 
furnishes  women  few  opportunities  for  committing  crimes. 

Extent  and  Character  of  Female  Crimes 

Statistics  of  female  criminality  in  this  country  are  very  in- 
adequate. According  to  the  U.  S.  Bureau  of  the  Census,  there 
were  on  January  i,  19 10,  in  the  penal  institutions  (state  prisons 
and  penitentiaries,  county  jails  and  workhouses,  municipal  jails 
and  workhouses,  institutions  for  juvenile  delinquents,  etc.) 
of  this  country  136,472  inmates.  Of  these  124,424  were  males, 
and  12,048  were  females.  During  the  year  1910  there  were 
committed  to  these  penal  institutions  493,934  persons;  of  whom 
445,431  were  males,  and  48,503  were  females.  The  ratio  of 
commitments  per  100,000  of  population  was  537.0;  for  males 
the  ratio  was  940.9,  for  females  the  ratio  was  108.8.  Conse- 
quently, the  ratio  for  the  males  divided  by  the  ratio  for  the 
females,  or  coefficient  of  difference,  was  8.6. 

These  statistics  seem  to  indicate  that  female  criminality  in 
relation  to  male  criminality  is  lower  in  this  country  than  in 
most  civilized  countries.  But  it  must  be  remembered  that 
these  are  the  figures  for  commitments  to  penal  institutions, 
and  everywhere  courts  are  more  reluctant  to  send  women  to 
prison  than  to  imprison  men.  This  is  probably  even  more  true 
of  the  courts  in  this  country  than  of  the  courts  of  other  coun- 
tries. So  that  the  apparent  deficiency  of  female  criminality 
in  this  country  can  doubtless  be  attributed  at  least  in  part  to 
the  sentimental  chivalry  (whether  mistaken  or  not  we  peed  not 
say  here)  of  the  American  courts  and  public. 

The  following  table  indicates  the  distribution  of  ten  of  the 
principal  offenses  for  which  men  were  committed  to  prison  in 
1910  as  compared  with  ten  of  the  principal  offenses  for  which 
women  were  committed  to  prison  during  the  same  year:  —  ^ 
^  U.  S.  Census  Statistics. 


FEMALE   CRIMINALITY  233. 

Men  and  Wojien  Committed  to  Prison  in  the  United  States  in  1910 

Males 

Commilments 

Offenses                                             Number  Per  Cent 

Distribution 

All  offenses 445,368  100. o 

1.  Drunkenness 158,181  35.5 

2.  Disorderly  conduct 76,140  17 .  i 

3.  Vagrancy 46,560  10. 5 

4.  Larceny 40,246  9 . o 

5.  Assault , .     21,201  4.8 

6.  Fraud 8,858  2.0 

7.  Burglary 8,847  2 .  o 

8.  Trespassing ,       8,327  i .  9 

9.  Violating  liquor  laws 7,219  16 

10.  Gambling 6,834  i .  5 

All  other  offenses 62,955  14.  i 

Females 

Commitments 

Offenses                                          •  ■    Number  Per  Cent 

■  Distribution 

All  offenses » .  48,566  100. o 

1.  Disorderly  conduct > .   15,788  32. 5 

2.  Drunkenness 12,796  26.3 

3.  Vagrancy 3,742  7 . 7 

4.  Prostitution 3,155  6.5 

5.  Larceny 2,470  5 .  i 

6.  Assault 1,469  3.0 

7.  Fornication 1,231  2.5 

8.  Incorrigibility 787  1.6 

9.  Keeping  house  of  ill  fame 692  1.4 

10.  Violating  city  ordinances 656  i  .4 

All  other  offenses 5,780  11 .9 

The  following  tables  indicate  the  comparative  criminality 
of  men  and  women  in  several  other  countries  with  respect  to 
certain  kinds  of  crime  and  crimes  in  general. 


234 


CRIMINOLOGY 


Germany,  1896 


Crimes 

Abandonment  of  children 

Abortion 

Procuration 

Receiving  stolen  goods  (repeated 

recidivism) 

Receiving  stolen  goods  (simple 

recidivism) 

Simple  theft 

Perjury 

Insults 

Simple  theft  (repeated  recidivism) 

Homicide 

Arson 

Embezzlement 

Fraud 

Crimes  in  general 

Extortion 

Aggravated  theft 

Domiciliary  trespass 

Minor  assaults 

Aggravated  theft  (repeated 

recidivism) 

Serious  assaults  

Violence,  etc.,  against  oflScials. . . 

Violence  and  threats 

Malicious  mischief 

Robbery 

Crimes  against  morals  upon 

children 


Number  of  Persons 

Convicted  to 

100,000  of 

Same  Sex 

Men  Women 

0.02  0.1 


0.4 
6.0 

0.07 


26.5 
274.6 

31 
223 

51 


7 

7 

o-S 

2.2 

85.6 

101.7 

2177.07 

30 

45-0 

103.8 

138.3 

14.4 
448.4 
88.3 
60.7 
93-6 
2.4 

25-3 


1-7 
9.2 

0.1 

13  I 

100.8 

1.2 

76. S 

14.4 
o.  I 

o-S 
17.6 
20.4 

3S8.9 

0.4 

S-6 

12.3 

154 

1 .2 

32.8 

5-6 

3-6 

5-4 
0.07 


Number  of  Women 

Convicted  to 

Each  100  Men 

Convicted 

800.0 

437-3 
167.7 

158.3 

53-9 
40. 1 

38.7 
34-2 

30-5 
22.0 
21.8 
20.6 
20. 1 
17.9 
14-3 
13-5 
II. 8 
II. I 

9-1 
7-3 
6.3 
5-9 
5-8 
2.9 

0.7 


England  and  Wales,  1893-1894  ^ 

Number  of  Women  to  100 
Crimes  Persons  Sentenced 

1893        1894 

Abortion  and  failure  to  report  birth 91  86 

Kidnapping  and  cruelty  to  children 70  57 

Counterfeiting,  etc 18  21 

Malicious  mischief 15  20 

Crimes  against  property  without  violence 19  19 

1  Statistik  des  Deiitschen  Reichs,  Neue  Folge,  Kriminalstatistik  fUr  das 
Jahr,  1896,  Erlauterungen,  II,  p.  33. 

^  England  and  Wales,  Judicial  Statistics,  Criminal  Statistics,  1894,  p.  19. 


FEMALE  CRIMINALITY 


235 


Other  crimes ■ i6  i6 

Crimes  of  violence  against  persons ii  13 

Robbery  and  extortion 10  11 

Forgery 9  8 

Domiciliary  trespass,  etc 3  4 

Sexual  crimes 4  3 


Crimes 


Austria,  1899  ^ 

Of  100  Convicted  of  Each  Crime  there  were 
Men 
••       71 


Women 

93-8 

89 

2 

30 

3 

20 

8 

19 

5 

19 

0 

14 

7 

13 

9 

10 

4 

8 

3 

6 

5 

5 

I 

4 

8 

4 

I 

3 

2 

3 

I 

2 

6 

2 

5 

Abandonment  of  children _, 

Abortion 10. 7 

Murder 69 . 6 

Fraud 79 .  i 

Theft 80.4 

Defamation 80 . 9 

Arson 85 . 2 

Crimes  in  general 86.1 

Rebellion 89 . 5 

Lese-majest6 .' 91.6 

Criminal  breach  of  trust 93-4 

Crime  against  religion 94 . 8 

Robbery 95 .  i 

Serious  assaults 95-8 

Sexual  crime 96 . 7 

Malicious  mischief 96 . 8 

Homicide 97-3 

Blackmail 97.4 


Italy,  1891-1895  ^ 

To  100  Sentenced  for  Each 

Offenses  Offense  there  were 

Men  Women 

Infanticide 7 .  70  92 .  30 

Procuration 19 . 1 1  80 .  89 

Abortion 21 .  65  73-35 

Defamation S3  ■  7°  46 .  30 

Insults 54  78  45-22 

Offenses  against  morals  and  order  of  the  family  ....  58-  27  41  -  73 
Abandonment  of  children,  abuse  of  means  of 

correction 62 .  85  37  -  iS 

Simple  theft 75-63  24 .  37 

Fraud  in  commerce  and  industry 79-46  20.54 

*  Die  Ergebnisse  der  Strafrechtspflege  in  den  im  Reichsrale  vertrelenen 
Konigreichen  und  L&ndern  im  Jahre  i8qq  QLsterreichische  Statislik,  Vienna, 
1903,  p.  xlix. 

*  Notizie  complementari  alle  statistiche  giudiziarie  penali  degli  anni  i8go-g5, 
p.  xxxvii. 


Hi 

17.19 

32 

16.68 

80 

15.20 

74 

14.26 

77 

11.23 

68 

932 

95 

90s 

49 

751 

61 

6.39 

91 

6.09 

02 

4.98 

74 

3.26 

70 

2.30 

77 

2.23 

.04 

0.96 

■236  CRIMINOLOGY 

Italy,  1891-1895— Continued 

To  100  Sentenced  for  Each 

Offenses Offense  there  were 

■  ■  ■  ■  Men       Women 

Offenses  in  general. .:...: 82. 

Minor  assaults ■..■..-.•.........•..•..-.■. 

Corruption  of  minors  and  offenses  against  decency. .  84. 

Fraud,  etc 85 . 

Aggravated  theft 

Threat 90 . 

Rebellion  and  insults  to  public  oflSicials 90. 

Forgery 92 . 

Serious  assaults 93 . 

Murder 93 . 

Counterfeit  money 95. 

Homicide 96 . 

Offenses  against  public  order 97 . 

Robbery,  etc 97 . 

Rape,  etc 99 . 

The  last  four  tables  also  indicate  that  there  is  from  four  to 
six  times  as  much  male  criminality  as  there  is  female  criminal- 
ity. According  to  the  British  census  of  19 10,  51.5  per  cent 
of  the  population  of  England  and  Wales  were  women;  according 
to  the  Austrian  census  of  1890,  51.6  per  cent  of  the  Austrian 
population  over  14  years  of  age  were  women;  and  according  to 
the  ItaUan  census  of  1901,  50.6  per  cent  of  the  Italian  popula- 
tion over  9  years  of  age  were  women.  So  that  the  population 
of  these  countries  was  almost  evenly  divided  between  the  two 
sexes. 

These  tables  indicate  that  in  abortion;  certain  crimes  against 
children,  such  as  infanticide,  abandonment,  kidnapping,  cruelty, 
etc.;  procuration;  and  in  some  forms  of  receiving  stolen  goods; 
female  criminality  exceeds  male  criminality.  Abortion  and  her 
crimes  against  children  are  due  to  her  functions  in  bearing  and 
rearing  children,  procuration  is  due  to  her  activities  as  a  pros- 
titute and  an  exploiter  of  prostitutes,  and  receiving  stolen 
goods  is  due  to  her  activities  as  an  accomplice  of  criminals. 

More  detailed  analyses  of  criminal  statistics  have  revealed 
the  fact  that  women  commit  poisoning  more  frequently  than 
men,  this  being  an  easy  way  for  them  to  commit  murder.  It  is 
probable  also  that  they  commit  such  crimes  as  vitriol  throwing 
more  frequently  than  men,  owing  to  jealousy;  and  make  false 
accusations  more  frequently  than  men,  owing  to  their  hysterical 


FEMALE   CRIMINALITY  237 

tendencies.    These  false  accusations  are  usually  of  sexual  at- 
tacks upon  them  by  men. 

The  above  tables  also  indicate  that  women  commit  very  few 
crimes  of  violence,  owing  largely  to  their  physical  weakness. 
Partly  for  the  same  reason  they  commit  few  of  the  sexual  crimes, 
though  this  may  be  due  also  in  part  to  their  more  passive  sexual 
nature.  They  commit  few  of  the  higher  classes  of  crimes  such 
as  forgery,  embezzlement,  counterfeiting  money,  etc.,  mainly 
because  women  do  not  play  an  important  part  in  the  business 
and  professional  worlds. 

Conjugal  Condition  of  Criminals 
Before  attempting  to  explain  why  there  is  apparently  so 
much  less  female  than  male  criminality,  it  is  desirable  to  pre- 
sent some  data  with  respect  to  the  conjugal  condition  of  both 
male  and  female  criminals. 

Italy,  1891-1895  ^ 

Annual  Average  Number  {of  Criminals) 
Status  to  100,000  of  the  Population  in 

Each  Group  over  14  years 

Unmarried 978 .  47 

Married 622.27 

Widowers  and  widows 291 .  84 

The  decrease  in  criminality  from  the  unmarried,  through 
the  married,  to  the  widowed  should  be  correlated  in  the  main 
with  the  increase  in  age,  since  I  have  shown  in  the  preceding 
chapter  that  criminality  is  greatest  during  adolescence  and 
early  adulthood,  and  decreases  steadily  throughout  the  re- 
mainder of  life. 

Netherlands,  1899  ^ 

Men  Women 

To  100  Men     To  100  Male  To  100  Women     To  100  Fe- 
of  Marriage-      Convicts  of      of  Marriage-       male  Con- 
able  Age        Marriageable        able  Age  victs  of 
there  were:         Age  there         there  were:      Marriageable 
Status                                            were:                              Age  there  were: 

Unmarried 34.8  59.1  36.2  36.7 

Married 58.8  36.7  52.4  52.6 

Widowers,  widows, 

divorced 6.4  4.2  11. 4  10.7 

^  Notizie  complementari  alle  stalistiche  giudiziarie  penali  degli  anni  iSgo- 
1895,  p.  Hi. 
*  W.  Bonger,  Criminality  and  Economic  Conditions,  Boston,  1916,  p.  450. 


238 

CRIMINOLOGY 

Switzerland,  i8g 

2-1896  1 

Men 

Women 

To  100  of  Male 

To  100  of  Female 

Population 

To  100  Male 

Population 

To  100  Female 

Status        over  12  Yrs. 

Prisoners 

over  12  Yrs. 

Prisoners 

Old  there  were: 

there  were: 

Old  there  were: 

there  were: 

Unmarried 49 . 3 

64.0 

45-7 

48.5 

Married 44 . 8 

26.6 

41.9 

33 -o 

Widowers  and 

widows 5.5 

5-7 

II. 7 

II. 6 

Divorced 0.4 

3-7 

0.7 

6.9 

The  last  two  tables  indicate  that  the  unmarried  men  are 
much  more  criminal  than  the  married  men,  but  that  the  crim- 
inality of  the  unmarried  women  is  very  slightly  above  that  of 
the  married  women.  The  following  table  indicates  the  dis- 
tribution both  with  respect  to  age  and  with  respect  to  conjugal 
condition,  and  is,  therefore,  much  more  significant  than  any 
of  the  preceding  tables. 

Germany,  1882-1893  * 
Convictions  per  100,000  Men  and  Women  of  Each  Category: 


Single 


Married 


Widowed  or  Divorced 


Age 

Men 
12-15  years. 
1S-18 
18-21 
21-25 

25-30 
30-40 
40-50 
50-60 
Over    60  "  , 

Women 
12-15  years. 
1S-18 
18-21 
21-25 

25-30 
30-40 
40-50 
50-60 
Over  60 

^  Die  Ergehnisse  der  Schweizerischen  Kriminalstatistik  wdhrend  der  Jakre 
i8g2-i8g6,  p.21. 

^  Adapted  from  G.  Aschaffenburg,  Crime  and  Its  Repression,  Boston,  1913, 
p.  164.  This  author  presents  these  German  statistics  in  much  greater  detail 
and  interprets  them  in  a  suggestive  manner. 


661. 1 

1319-2 

2994-5 

6413.0 

3107.0 

3566.3 

2950.9 

2504-7 

2880.9 

1961.2 

2205.7 

1487.8 

I24I.9 

1009.8 

494.6 

490.1 

149 -5 

320.5 

415-2 

602.  s 

417-S 

469-9 

440.7 

454 -S 

446.2 

500.0 

334-7 

468.2 

221.5 

299 -S 

102.2 

133-4 

4273-7 

3797-3 

2626.3 

1267.8 

342.7 


1339-3 

1149.2 

1029.9 

709.9 

369.2 

III. 2 


FEMALE   CRIMINALITY  239 

It  is  evident  from  the  above  table  that  the  young  married  men, 
namely,  from  i8  to  25  years  of  age  are  more  criminal  than  the 
unmarried  of  the  same  age.  This  may  be  due  largely  to  the 
heedless  early  marriages  among  the  poor,  as  a  result  of  which 
many  young  married  men  are  driven  into  crime  in  the  effort  to 
support  their  wives  and  children.  But  during  the  other  age 
periods  the  unmarried  men  surpass  the  married  in  their  criminal- 
ity. This  is  probably  due  in  part  to  the  fact  that  family  life  has 
a  stabilizing  effect  upon  men,  and  thus  restrains  them  somewhat 
from  crime.  But  it  is  doubtless  due  in  considerable  part  to  the 
fact  that  the  criminal  class  is  less  likely  to  marry  than  the  non- 
criminal class,  thus  enhancing  the  criminality  of  the  unmarried. 

The  married  women  present  a  striking  contrast  to  the  married 
men  in  the  above  table,  for  their  criminality  surpasses  that  of 
the  unmarried  women  throughout  their  Kves.  This  seems  to 
contradict  the  Dutch  and  Swiss  statistics  given  above  which 
indicated  that  the  unmarried  women  were  more  criminal  than 
the  married.  But  those  tables  did  not  differentiate  with  respect 
to  age,  so  as  to  make  it  possible  to  compare  the  married  and  the 
unmarried  of  the  same  age  groups.  The  German  statistics  with 
respect  to  the  specific  crimes  indicate  that  the  higher  criminality 
of  the  married  women  is  due  largely  to  an  excessive  number  of 
convictions  for  insult,  and  to  a  smaller  extent  to  numerous  con- 
victions for  breach  of  the  peace  and  assault  and  battery.  Aschaf- 
fenburg  asserts  that  this  is  due  to  the  fact  that  the  poorer  classes 
are  crowded  together  in  tenements,  etc.,  thus  giving  rise  to 
much  friction  among  the  women  most  of  whom  are  married.^ 

Bonger  expresses  the  opinion  that  the  high  criminality  of  the 
married  women  is  due  to  the  fact  that  a  greater  proportion  of 
the  total  number  of  unmarried  women  is  in  the  middle  and  upper 
classes  than  in  the  poor  classes.  Consequently,  inasmuch  as 
there  is  comparatively  little  criminality  in  the  middle  and  upper 
classes,  this  situation  lessens  the  criminality  of  the  unmarried 
women.^  Unfortunately  we  have  no  good  detailed  statistics  of 
female  criminality  from  any  other  countries,  so  that  we  cannot 
determine  whether  the  situation  in  Germany  is  characteristic 
of  th-e  remainder  of  the  world. 

The  widowed  and  divorced  of  both  sexes  display  a  high  degree 
of  criminality.    This  is  probably  due  in  considerable  part  to  the 

1  Op.  cit.,  pp.  166-167.  ^  Op.  cit.,  p.  462, 


240  CRIMINOLOGY 

disturbing  effect  of  losing  a  spouse,  and  the  consequent  breaking 
up  of  the  home.  But  it  is  doubtless  also  due  in  part  to  the  fact 
that  dissolution  of  marital  unions  by  death  or  otherwise  is  more 
likely  to  take  place  in  the  poorer  classes  whose  criminality  is 
high  thah  in  the  well-to-do  classes  whose  criminahty  is  low. 

Briefly  summarizing  the  above  statistics,  it  is  evident  that 
female  criminality  tends  towards  crimes  against  property 
rather  than  towards  crimes  against  the  person  and  violent 
crimes.^  It  is  also  evident  that  female  criminality  begins  later 
than  male  criminality,^  probably  largely  because  girls  are  kept 
in  the  home  and  watched  over  more  carefully  than  boys.  It 
is  possible,  however,  that  female  criminals  are  more  incorrigible, 
probably  in  part  because  the  social  reinstatement  of  the  female 
criminal  is  more  difficult  than  that  of  the  male  criminal. 

DnTERENCES   BETWEEN   MeN  AND  WOMEN 

In  attempting  to  explain  the  apparently  lower  criminality  of 
women  as  compared  with  men,  we  must  discuss  first  the  dif- 
ferences between  the  sexes  which  are  of  significance  in  this  con- 
nection. It  is  evident,  to  begin  with,  that  woman's  inferiority 
in  physical  strength  shuts  her  out  almost  entirely  from  many 
kinds  of  crime  requiring  great  physical  strength,  such  as  bur- 
glary, highway  robbery,  various  forms  of  murder,  etc.  Further- 
more, the  relatively  passive  role  of  the  female  in  sexual  inter- 
course makes  it  almost  impossible  for  her  to  commit  certain 
kinds  of  sexual  crimes,  such  as  rape,  however  strong  may  be  her 
desire  to  commit  these  crimes. 

But  there  are  many  who  believe  that  woman's  lower  criminal- 
ity is  also  due  to  a  moral  superiority  on  her  part.  It  seems  to  be 
a  widespread  opinion  that  the  female  sex  is  iimately  more  moral 

i"In  Germany  (1885-90)  there  were  21  female  criminals  for  every  100 
male.  But  the  proportion  dififers  for  different  crimes.  For  crimes  against 
public  order  the  proportion  is  only  9.1  per  cent;  for  crimes  against  the  person, 
15.9  per  cent;  while  for  crimes  against  property  it  is  27.8  per  cent."  (R. 
Mayo-Smith,  Statistics  and  Sociology,  New  York,  1895,  p.  277.) 

2  "In  the  year  1888,  while  20  per  cent,  of  the  male  population  of  our  local 
prisons  in  England  and  Wales  were  under  21,  only  12  per  cent,  of  the  female 
prison  population  were  imder  that  age.  On  the  other  hand,  women  between 
21  and  50,  form  a  larger  proportion  of  the  female  prison  population,  than 
men  between  the  same  ages  do  of  the  male  prison  population."  (W.  D. 
Morrison,  Crime  and  Its  Causes,  London,  1902,  p.  161.) 


FEMALE   CRIMINALITY  24I 

than  the  male  sex.  An  objection  to  this  opinion  which  imme- 
diately presents  itself  is  that  the  parentage  of  every  individual 
is  bi-sexual,  so  that  every  woman  inherits  from  a  male  as  well  as 
from  a  female  parent,  just  as  every  man  inherits  from  a  female 
as  well  as  from  a  male  parent.  Furthermore,  the  recent  study 
of  heredity  furnishes  evidence  that  the  sexes  are  equally  potent 
with  respect  to  inheritance.  Consequently,  even  if  we  were  to 
assume  that  the  first  woman  was  an  angel  and  the  first  man  a 
devil,  the  bi-sexual  inheritance  of  every  succeeding  generation 
would  mix  the  male  and  female  traits  so  that  before  long  every 
individual,  both  male  and  female,  would  become  a  complex  of 
angelic  and  diabolical  traits. 

At  the  same  time  it  is  true  that  the  primary  and  secondary 
sexual  traits  persist  and  are  monopolized  in  the  main  by  their 
respective  sexes.  It  is  conceivable  that  in  these  permanent 
and  distinctive  sex  differences  may  be  found  the  basis  for  moral 
differences.  The  sex  differences  arise  out  of  the  genesic  func- 
tions. Maternity,  owing  to  pregnancy,  lactation,  etc.,  has  much 
more  influence  upon  the  female  than  paternity  has  upon  the 
male.  The  principal  difference  having  moral  significance  prob- 
ably is  that  maternity  enhances  the  emotional  traits  of  woman 
more  than  paternity  enhances  the  corresponding  traits  of  man. 
So  that  the  sympathetic  nature  of  woman  may  in  some  respects 
be  superior  to  that  of  man. 

But  this  appa.rent  gain  is,  after  all,  dubious,  because  it  has 
drawbacks  which  probably  full  compensate  for  it.  The  greater 
affectibility  of  woman  also  leads  to  greater  instability  and  ex- 
citability of  character.  Furthermore,  while  woman's  cerebral 
equipment  for  intellectual  achievement  may  be  as  good  as  that 
of  man,  her  affectibility  is  prone  to  interfere  with  her  intellectual 
processes  in  such  a  fashion  as  to  render  her  less  logical  and  ra- 
tional than  man.  Now  both  of  these  defects  arising  out  of  her 
sympathetic  nature  have  a  moral  significance.  Morality  is 
concerned  not  only  with  the  relationships  within  the  home,  but 
also  with  the  wider  relationships  in  society  at  large.  While  a 
profoundly  sympathetic  nature  is  of  the  utmost  value  in  the 
rearing  of  children,  both  in  the  home  and  in  society  at  large  the 
sympathetic  feelings  need  the  intellectual  guidance  which  con- 
verts them  into  the  more  complex  and  more  valuable  trait  which 
we  may  call  sympathetic  imagination.    Consequently,  we  have 


242  CRIMINOLOGY 

no  reason  to  believe  that  woman  has  innate  traits  which  render 
her  more  moral  {e.  g.,  more  adaptable  to  life  in  society)  than 
man/  so  that  we  shall  have  to  look  elsewhere  for  an  explanation 
of  her  apparently  lower  criminality. 

Another  sex  difference  which  has  been  used  to  explain  the 
apparently  higher  criminality  of  man  is  the  greater  variational 
tendency  of  man.  A  vast  mass  of  evidence  has  been  accu- 
mulated by  biologists  and  psychologists  which  indicates  that  the 
male  sex  varies  more  than  the  female  sex.^  This  fact  should 
perhaps  be  correlated  with  the  fact  that  the  female  resembles 
the  child  more  than  the  male  resembles  the  child.  Furthermore, 
it  is  frequently  alleged  that  the  male  is  more  katabolic,  the  female 
being  relatively  anabolic.  That  is  to  say,  the  male  is  said  to  be 
more  active  and  initiative,  thus  expending  energy  more  freely, 
while  the  female  is  said  to  be  more  passive  and  to  be  storing  up 
energy.  The  explanation  of  all  these  differences  and  alleged 
differences  doubtless  is  that  woman  in  her  sexual  traits  is  highly 
specialized  for  procreation.  Consequently,  aside  from  the 
specialization  in  her  reproductive  organs  she  is  unable  to  vary 
away  from  the  infantile  t)^e  as  much  as  man,  while  much  of  her 
energy  and  vitality  is  drafted  for  use  in  the  performance  of  her 
genesic  functions. 

^  It  must  be  remembered  throughout  the  above  discussion  that  no  moral 
traits  per  sc  can  be  inherited.  Unfortunately  there  is  not  the  space  to  dis- 
cuss at  length  the  sex  differences  which  furnish  an  anatomical  and  phys- 
iological basis  for  moral  differences.  Havelock  Ellis  has  summarized  the 
data  on  the  greater  affectibility  of  woman  in  the  thirteenth  chapter  of  his 
Man  and  Woman,  5th  ed.,  London,  1914.  He  closes  this  chapter  with  the 
following  words: 

"The  affectability  of  women  exposes  them,  as  I  have  had  occasion  to 
point  out,  to  very  diabolical  manifestations.  It  is  also  the  source  of  very 
much  of  what  is  most  angelic  in  wom9,n  —  their  impulses  of  tenderness, 
their  com.passion,  their  moods  of  divine  childhood.  Poets  have  racked  their 
brains  to  express  and  to  account  for  this  mixture  of  heaven  and  hell.  We 
see  that  the  key  is  really  a  very  simple  one;  both  the  heaven  and  hell  of 
women  are  but  aspects  of  the  same  physiological  affectability.  Seeing 
this,  we  may  see,  too,  that  those  worthy  persons  who  are  anxious  to  cut 
off  the  devil's  tail  might  find,  if  they  succeeded,  that  they  had  also  shorn 
the  angel  of  her  wings.  The  emotionality  of  women,  within  certain  limits, 
must  decrease;  there  are  those  who  will  find  consolations  in  the  gradual 
character  of  that  decrease."  (P.  425.) 

*  For  brief  summaries  of  this  evidence,  see  H.  Ellis,  op.  cit.;  W.  I.  Thomas, 
Sex  and  Society,  Chicago,  1907. 


FEMALE   CRIMINALITY  243 

Some  writers  have  questioned  the  existence  of  these  sex  differ- 
ences. It  is  true  that  it  is  not  easy  to  prove  their  existence  con- 
clusively, because  it  is  difl&cult  to  determine  upon  unit  char- 
acters and  then  to  ascertain  their  comparative  variability  in  the 
two  sexes,  and  because  environmental  and  social  factors  in- 
fluence the  relative  activity  of  the  sexes.  But  it  is  highly  proba- 
ble that  the  male  sex  is  more  variable.  The  significance  of  this 
greater  variability  for  our  purpose  is  that  the  male  sex  probably 
varies  more  than  the  female  sex  in  certain  directions  which  lead 
to  crime.  For  example,  the  available  statistics  indicate  that 
there  is  more  male  than  female  amentia,  and  probably  more  male 
than  female  insanity.  The  male  sex  probably  varies  more  from 
the  normal  in  other  respects  as  well  which  lead  to  crime. 

It  is  hardly  necessary  to  add  that  the  male  sex  varies  from  the 
normal  more  than  the  female  sex  also  in  the  direction  of  unusual 
ability  and  genius,  so  that  the  excessive  degree  to  which  it  varies 
in  injurious  ways  is  doubtless  fully  compensated  for  by  excessive 
variation  in  useful  directions.^ 

Lenient  Treatment  of  Female  Criminals 

Woman  is  favored  in  the  repression  and  treatment  of  crime, 
thus  lowering  somewhat  the  statistics  of  her  criminality.  The 
victims  of  female  criminals  are  not  so  likely  to  complain  against 
them  as  they  would  be  to  complain  against  male  criminals.  The 
detected  female  criminal  is  frequently  not  prosecuted  so  vig- 
orously as  the  male  criminal.  When  brought  to  trial  she  is  more 
likely  to  be  acquitted.^  Men,  though  stern  towards  culprits  of 
their  own  sex,  are  liable  to  display  sentimental  weakness  towards 
the  female  criminal.  If  she  were  tried  by  women  this  would 
probably  not  be  the  case.  Even  when  convicted  she  is  less  likely 
to  be  sent  to  prison,  since  judges  usually  try  if  possible  to  avoid 
sending  a  woman  to  prison  and  to  deal  with  her  more  leniently. 

^  For  criticisms  of  the  theory  that  the  male  sex  varies  more  than  the  fe- 
male sex,  see,  Leta  S.  HolHngworth,  Variability  as  Related  to  Sex  Dijferences 
in  Achievement,  in  the  Am.  Jour,  of  Sociology,  Vol.  XIX,  No.  4,  Jan.,  1914, 
pp.  510-530;  Helen  Montague  and  Leta  S.  HolHngworth,  The  Comparative 
Variability  of  the  Sexes  at  Birth,  in  the  Am.  Jour,  of  Sociology,  Vol.  XX, 
No.  3,  Nov.,  1914,  pp.  335-370. 

*  For  statistics  of  the  relative  number  of  acquittals  of  male  and  female 
criminals,  see,  W.  Bonger,  op.  cit.,  pp.  471-472. 


244  CRIMINOLOGY 

There  has,  perhaps,  been  a  slight  amount  of  justification  for  this 
favoritism  towards  woman,  because  it  is  usually  more  difficult 
for  a  female  ex-convict  to  reinstate  herself  in  society  than  it  is  for 
a  male  ex-convict.  But  this  leniency  has  served  to  cover  up  and 
hide  a  part  of  woman's  criminality. 

Woman  Shielded  from  Criminality  by  Her  Secluded  Life 

We  now  come  to  the  two  principal  causes  for  the  apparently 
lower  criminality  of  women.  The  first  is  that  women  obtain 
much  fewer  opportunities  to  commit  crimes  than  men.  Woman's 
sphere  of  activities  has  almost  invariably  been  within  the  home, 
frequently  much  secluded  from  the  outer  world.  Up  to  the 
present  time  they  have  not  taken  part  to  any  great  extent  in  the 
economic  occupations  and  the  professions  outside  of  the  home. 
They  have  not  been  subjected  to  the  same  extent  as  men  to  the 
bitter  economic  struggle  for  existence,  which  is  borne  for  them 
in  part  by  the  men.  Occupied  within  the  home  with  their  house- 
hold and  maternal  duties  they  have  been  shielded  from  many 
temptations  to  commit  crimes  in  the  course  of  economic  ac- 
tivities, from  many  corrupting  influences,  and  to  a  large  extent 
from  alcoholic  stimulation. 

Furthermore,  this  seclusion  has  accentuated  the  moral  timid- 
ity which  probably  arises  out  of  the  distinctively  female  traits 
which  I  have  already  described,  and  which  lessen  woman's 
initiativeness.  In  similar  fashion,  this  seclusion  added  to  these 
innate  traits  has  strengthened  her  religious  sentiment,  and 
has  made  her  more  superstitious  and  more  amenable  to  the 
influence  of  the  priest.  While  I  have  shown  in  Chapter  VIII 
that  religion  probably  is  not  in  the  long  run  a  force  against 
crime,  it  is  possible  that  religious  sentiment  coupled  with  moral 
timidity  has  intimidated  women  from  a  certain  amount  of 
crime. 

It  is,  therefore,  to  be  expected  that  as  woman's  position  be- 
comes more  like  that  of  man  her  criminality  will  increase.  That 
this  has  already  happened  has  been  illustrated  in  the  statistics 
cited  earlier  in  this  chapter.  These  indicate  that  in  the  more 
civilized  countries  where  women  have  entered  the  economic 
occupations  and  the  professions  to  a  considerable  extent  so  that 
her  social  position  has  become  more  like  that  of  man,  her  crim- 


FEMALE  CRIMINALITY  245 

inality  is  much  higher  than  in  the  less  civilized  countries  where 
she  is  still  much  secluded  in  the  home.  The  available  statistics 
indicate  that  her  criminality  is  rapidly  increasing  as  she  is  at- 
taining a  greater  degree  of  economic  independence.  This  does 
not  mean  necessarily  that  her  criminality  will  ever  reach  that  of 
man,  however  much  her  social  position  may  become  like  that  of 
man,  for  there  will  always  remain  the  innate  physical  and  mental 
differences  between  the  sexes  which  tend  to  depress  the  relative 
criminality  of  woman. 

Extra- JuDicLVL  Female  Crimes 

The  second  great  reason  for  the  apparently  lower  criminality 
of  women  is  that  there  are  many  more  extra-judicial  female 
crimes  than  there  are  extra-judicial  male  crimes.  That  is  to  say, 
there  are  many  more  crimes  committed  by  women  which  are  not 
recorded  in  the  judicial  statistics  than  there  are  of  unrecorded 
crimes  committed  by  men.  This  is  due  partly  to  the  favoritism 
shown  to  women  which  is  mentioned  above.  But  it  is  due  prin- 
cipally to  the  fact  that  female  crimes  are  more  difficult  to  dis- 
cover than  male  crimes.  A  much  higher  percentage  of  female 
than  of  male  crimes  are  crimes  of  complicity.  It  is  obviously 
more  difficult  to  detect  crimes  of  complicity  than  crimes  which 
are  committed  overtly.  Many  a  male  criminal  is  being  aided  by 
a  female  accomplice  who  remains  in  the  background.  The  fact 
that  the  judicial  statistics  reveal  so  large  a  number  of  female 
receivers  of  stolen  goods  is  a  slight  indication  of  the  extent  of 
female  complicity.  Furthermore,  many  a  man  is  instigated  to 
commit  a  crime  by  a  woman,  even  though  she  may  not  become 
guilty  of  complicity  in  the  technical  sense.  In  fact,  there  is 
evidence  of  so  great  an  excess  of  female  over  male  extra-judicial 
crime  that  some  writers  have  come  to  the  conclusion  that  it 
fully  compensates  for  the  deficiency  in  female  judicial  crime.  ^ 

'  L6ale  expresses  this  opinion  in  the  following  words:  — 
"La  femme  est  moins  criminelle  que I'homme  au  point  devue  de  la  crim- 
inalite  judiciaire.     Absolument  parlant,  c'est-a-dire  eu  6gard  k  la  d61in- 
quance  r^elle,  on  ne  peut  pas  admettre  que  la  femme  soit  moins  criminelle 
que  I'homme,  autrement  dit  que  le  coefficient  de  criminality  soit  plus  ^lev6 
pour  les  hommes  que  pour  les  femmes."    (H.  L6ale,  De  la  criminalili  des 
sexes,  in  the  Arch,  d'anth.  crim.,  Vol.  XXV,  June,  1910,  p.  430.) 
He  characterizes  the  relative  criminality  of  the  sexes  as  follows: 
"La  force  du  penchant  au  crime  ne  difffere  pas  chez  les  deux  sexes.    Ce- 


246  CRIMINOLOGY 

However,  it  is  doubtful  if  woman's  criminality  equals  that  of 
man,  even  when  her  extra-judicial  crimes  are  included.  Both 
on  account  of  her  innate  traits  and  her  social  position,  her  anti- 
social tendencies  are  more  likely  to  take  an  immoral  form  which 
is  not  criminal,  even  though  it  may  do  as  much  harm  as  many 
kinds  of  crime.  We  have  reason  to  believe  that  women  excel 
men  in  deceitfulness,  lying,  hypocrisy,  malicious  gossip,  back- 
biting, slander,  nagging,  etc.,  and  a  weaker  sense  of  social 
solidarity  and  of  justice.  Some  of  these  traits  are  not  even  called 
vices  usually,  to  say  nothing  of  not  being  crimes.  And  yet  it 
goes  without  saying  that  they  are  perpetual  causes  of  friction  in 
society,  and  give  rise  to  an  immense  amount  of  unhappiness. 
So  that  while  women  are  saved  from  a  certain  amount  of  crime 
by  their  secluded  manner  of  living,  they  do  not  acquire  the 
broader  outlook  upon  life  which  would  save  them  from  many  of 
the  above  immoralities.^ 

Hence  it  is  that  so  far  as  it  is  possible  to  compare  the  sexes 
with  respect  to  morality,  they  probably  average  up  about  the 
same,  but  it  is  impossible  to  make  a  strict  comparison,  for  they 
differ  from  each  in  such  a  manner  as  to  be  complementary  to 
each  other,  so  that  they  cannot  be  judged  by  exactly  the  same 
standard. 

Prostitution  and  Crime 

Before  closing  this  chapter  it  is  essential  to  touch  briefly  upon 
the  relation  between  prostitution  and  crime.  Some  criminolo- 
gists have  regarded  prostitution  as  being  in  large  part  a  female 
equivalent  of  crime  among  men.    Indeed,  Lombroso  and  Ferrero 

pendant,  la  quantite  r6elle  des  crimes  commis  par  eux  peut  6tre  differente, 
at  sera  superieure  chez  celui  des  deux  sexes  dont  le  penchant  aura  ete  stimule 
et  seconde  davantage  par  tout  un  ensemble  de  circonstances  fortuites  et 
par  I'influence  du  milieu  propre  k  chaque  sexe."    (P.  430.) 

^  For  further  discussion  of  female  criminality  reference  may  be  made  to 
the  following  works:  C.  Granier,  Lafemme  criminelle,  Paris,  1906;  C.  Lom- 
broso and  G.  Ferrero,  La  donna  dclinquenle,  3d  ed.,  Turin,  1915;  Pauline 
Tamowsky,  Lcs  femines  homicides,  Paris,  1908;  N.  Colajanni,  La  sociologia 
criminate.  Vol.  II,  Catania,  1889;  A.  Corre,  Crime  et  suicide,  Paris,  1891, 
Bk.  II,  Chap.  5;  Frances  A.  Kellor,  Experimental  Sociology,  New  York,  1901; 
H.  L.  Adam,  Woman  and  Crime,  London,  1914.  Part  of  the  treatise  by  Lom- 
broso and  Ferrero  is  translated  under  the  title  of  The  Female  Ofender,  New 
York,  1895. 


FEMALE  CRIMINALITY  247 

go  SO  far  as  to  classify  the  prostitutes  with  the  criminals  and  to 
study  them  as  such,  thus  making  the  sum  total  of  female  crim- 
inality equal  to  if  not  more  than  the  sum  total  of  male  crim- 
inality.^ 

There  is  a  small  measure  of  truth  in  this  theory.  Some  women 
become  prostitutes  who,  would  become  criminals  if  more  or 
better  opportunities  for  criminal  careers  presented  themselves 
to  them.  Among  these  are  some  feebleminded  and  a  few  insane 
women,  and  others  who  are  abnormal  in  various  ways.  Some  of 
them,  perhaps  many  of  them,  enter  upon  a  career  of  prostitution 
because  it  is  the  easiest  way  for  them  to  secure  the  clothes  and 
jewelry  which  their  vanity  demands,  and  to  live  the  life  of 
luxury  which  their  weak  and  idle  natures  crave.  A  man  who 
wishes  to  attain  similar  ends  is  forced  to  embark  upon  a  criminal 
career.  Owing  to  the  severe  social  condemnation  of  prostitu- 
tion, a  woman  who  enters  upon  a  life  of  prostitution  is  likely  to 
be  somewhat  brazen  and  hardened  to  public  opinion  to  start 
with.  Furthermore,  prostitution  usually  has  a  degrading  effect 
upon  women,  and  frequently  leads  them  to  crime  or  to  com- 
plicity in  crime. 

But  it  is,  in  my  opinion,  an  egregious  error  to  identify  prosti- 
tution with  crime,  even  though  it  is  sometimes  stigmatized  by 
the  law  as  criminal.  While  it  is  usually  regarded  as  a  grave 
violation  of  the  existing  moral  standard,  it  should  if  anything  be 
called  vicious  rather  than  criminal.  This  is  true,  in  the  first 
place,  because  both  the  actions  of  the  prostitute  frequently  and 
of  her  customer  almost  always  are  due  to  natural  human  im- 
pulses, and  they  act  in  mutual  agreement  with  each  other,  so  that 
their  conduct  does  not  give  rise  usually  to  conflict  between  in- 
dividual interests,  as  is  the  case  almost  invariably  with  criminal 
conduct.  In  the  second  place,  many  women  are  forced  into 
prostitution  by  economic  necessity,  because  there  are  not  enough 
openings  for  women  in  industry  and  the  professions.  Conse- 
quently, prostitution  is  to  a  large  extent  a  female  professional 
activity,  and  is  more  the  equivalent  of  male  occupational  and 
professional  activities  than  it  is  of  male  criminality. 

^  See  their  treatise  mentioned  above  in  which  the  data  with  regard  to 
prostitutes  and  female  criminals  are  intermingled  and  combined  with  each 
other  in  such  a  fashion  as  to  make  prostitution  and  female  criminality  iden- 
tical, or,  to,  say  the  least,  strictly  analogous. 


248  CRIMINOLOGY 

The  above  statements  can  be  made  with  a  measure  of  truth 
of  male  criminality  as  well,  for  it  also  is  due  in  part  to  natural 
but  unregulated  human  impulses,  and  is  in  a  sense  professional 
when  men  are  forced  into  criminal  careers  by  economic  necessity. 
But  these  features  are  much  more  characteristic  of  prostitution. 
Inasmuch  as  prostitution  rarely  ever  lea,ds  to  a  violent  conflict  of 
individual  interests,  as  is  true  almost  invariably  of  criminal 
conduct,  it  should,  when  harmful  to  society,  be  called  a  vicious 
rather  than  a  criminal  form  of  conduct. 


PART  IV 
CRIMINAL  JURISPRUDENCE 


CHAPTER  XVI 

THE  EVOLUTION  OF  CRIMINAL  LAW  AND  THE 
CLASSIFICATION  OF  CRIMES 

The  origin  of  criminal  law:  private  vengeance;  the  lex  talionis;  composi- 
tion —  Influence  of  despotic,  class,  and  priestly  rule  —  Penal  codes  — 
The  Roman  law  —  The  English  common  law  —  The  king's  peace  — 
Crimes  classified  as  acts  —  Functional  classifications  of  crimes  —  A 
subjective  classification  of  crimes  —  Relation  between  the  criminal 
and  the  civil  law. 

In  primitive  communities  social  control  operates  through  the 
powerful  forces  of  custom,  public  opinion,  tradition,  magic,  and 
religion.  Law  in  the  strict  political  sense  of  the  term  cannot 
exist  in  these  communities.  In  higher  stages  of  culture,  namely, 
in  barbarous  and  semi-civilized  societies,  the  above-mentioned 
forces  still  continue  to  exercize  a  powerful  influence.  But  there 
are  at  least  two  new  important  factors  for  social  control.  The 
first  of  these  is  the  art  of  writing  which  makes  possible  an  ac- 
curate, permanent  record  of  laws,  in  the  place  of  the  inaccurate, 
word-of-mouth  record  of  tradition.  The  second  is  the  state 
which  has  now  evolved  from  the  simpler  clan  and  tribal  organiza- 
tion. The  organization  of  the  state  brings  into  being  a  strong, 
centralized  government  over  a  definite  area  of  considerable 
extent  and  over  a  large  number  of  people.  It  creates  executive 
and  legislative  authorities  for  the  promulgation  and  legislation 
of  laws,  and  judicial  authorities  for  their  interpretation  and 
administration,  to  a  degree  which  is  not  possible  in  the  simpler 
forms  of  social  organization.  So  that  written  law  now  comes  to 
be  one  of  the  most  important  agencies  of  social  control. 

The  Origin  of  Criminal  Law 

Some  of  the  offenses  of  which  the  law  now  takes  cognizance 
were  formerly  subject  to  private  vengeance.  Many  of  the 
offenses  in  primitive  society  are  subject  to  private  vengeance 
under  the  so-called  lex  talionis  or  law  of  retaliation  (an  eye  for 
an  eye,  a  tooth  for  a  tooth,  a  life  for  a  life,  etc.).    Without 


252  CRIMINOLOGY 

social  regulation  private  vengeance  is  likely  to  become  exces- 
sive, and  to  give  rise  to  disorder.  Blood  feuds  arise  between 
families,  clans,  and  sometimes  tribes,  and  continue  for  a  long 
time  to  cause  much  loss  of  life.^  So  that  it  was  to  be  expected 
that  with  the  establishment  of  the  state  society  would  attempt 
to  regulate  this  prolific  source  of  disorder.  Such  regulation  was 
accomplished,  not  necessarily  by  making  private  vengeance 
public,  but  by  specifying  through  the  law  the  limitations  of 
private  vengeance,  and  by  establishing  courts  of  justice  which 
should  decide  when  private  vengeance  might  be  exercized. 

Many  of  the  ancient  penal  codes  are  devoted  in  part  to  de- 
scribing the  offenses  in  which  the  victim  may  take  private 
vengeance,  and  the  kind  of  vengeance  permitted.  A  judgment 
of  a  court  in  such  a  case  permitted  the  victim  to  wreak  ven- 
geance if  he  chose  to  do  so,  but  did  not  usually  require  it  of  him. 
As  time  went  by,  the  practise  of  compounding  for  these  offenses 
developed.  It  became  possible  for  the  offender  to  escape  ven- 
geance by  making  a  money  payment  (Anglo-Saxon,  60/ and, 
wergild)  ^  to  the  victim.^ 

From  the  early  social  and  legal  institutions  of  private  ven- 
geance and  of  the  composition  of  wrongs  there  developed  a 
considerable  part  if  not  all  of  the  civil  law  and  a  part  of  the 
criminal  law.  In  some  of  the  cases  in  which  it  came  to  be  recog- 
nized that  it  was  to  the  public  interest  that  the  offender  be  pun- 
ished, the  victim  failed  to  exercize  his  right  of  vengeance,  so 
that  the  offender  went  scot  free.  Consequently,  these  offenses 
gradually  became  public  wrongs  or  crimes,  and  are  now  punished 
by  society  under  the  criminal  law.  The  scope  of  the  criminal 
law  has  expanded  with  the  increased  complexity  of  the  life  and 
organization  of  the  community. 

Influence  of  Despotic,  Class,  and  Priestly  Rule 

Primitive  society  is  more  or  less  democratic  in  its  character. 
It  is  too  simple  to  permit  of  great  differentiation  in  the  way  of 
status.    The  elders,  magicians,  and  chiefs,  of  course,  have  much 

^  Cf.  H.  E.  Seebohm,  On  the  Structure  of  Greek  Tribal  Society,  London, 
1895,  pp.  41-45- 

*  According  to  the  Standard  Dictionary,  bot  =  profit,  wer  =man,  gild  =  pay- 
ment. 

*  Cf.  Frederic  Seebohm,  Tribal  Custom  in  Anglo-Saxon  Law,  London,  1902. 


THE  EVOLUTION  OF  CRIMINAL  LAW  25^ 

influence.  But  it  is  ordinarily  impossible  for  one  individual 
or  class  to  dominate  for  any  great  length  of  time.  But  as  we 
pass  from  the  tribal  organization  to  the  settled  village  communi- 
ties, and  especially  to  the  state  and  the  nation,  there  arises  the 
autocratic  and  despotic  power  of  kings,  while,  as  a  result  of  the 
increasing  complexity  of  the  political  organization  due  to  the 
development  of  the  state,  and  of  the  economic  organization  due 
to  the  extension  of  the  division  of  labor,  there  appear  ruling 
classes. 

Despots  and  ruling  classes  have  used  their  power  to  make 
many  new  crimes  in  their  own  interest,  and  to  enforce  the 
criminal  law  in  the  most  drastic  fashion.  Throughout  the  long 
and  turbulent  period  during  which  nations  and  states  were 
being  formed,  which  in  some  parts  of  the  world  has  lasted  down 
to  the  present  day,  despots  and  ruling  classes  have  exploited 
the  masses  partly  by  means  of  the  criminal  law.  It  is  only 
very  recently  that  the  modern  democratic  movement  inspired 
by  a  humanitarian  ideal  has  ameliorated  the  law,  and  has  greatly 
diminished  the  extent  to  which  it  is  used  as  a  means  of  exploita- 
tion. On  the  other  hand,  it  is  true  that  centralized  power  has 
been  needed  at  certain  times  and  places  to  bring  into  being  a 
strong  and  effective  government. 

Despots  and  ruling  classes  have  been  greatly  helped  by  re- 
ligion. It  has  almost  always  been  to  the  interest  of  the  priestly 
class  to  league  itself  with  despots  and  ruling  classes  and  to  give 
them  religious  sanction  for  their  tyrannical  acts.  In  many  of  the 
nations  which  evolved  from  a  tribal  organization  the  tribal  god 
developed  into  a  powerful  and  frequently  a  vengeful  deity.  Con- 
sequently, it  became  all  the  more  desirable  to  avoid  giving  offense 
to  this  powerful  spiritual  being.  Any  offense  which  could  in 
any  sense  be  construed  as  offending  the  deity  was  severely  pun- 
ished. The  priests  have  almost  invariably  encouraged  the  sup- 
pression of  sins  by  penal  measures  because  it  has  enhanced  their 
power  and  prestige. 

Kings  have  been  much  aided  in  wielding  their  power  by  the 
divinity  which  has  been  attributed  to  them  partly  because  of 
their  exalted  position,  but  also  for  other  reasons  which  I  have 
not  the  space  to  state  here.'^    As  a  divine  or  semi-divine  person, 

'  See  J.  G.  Frazer,  Lectures  on  the  Early  History  of  the  Kingship,  London, 
1905- 


254  CRIMINOLOGY 

and  as  the  vicegerent  of  the  deity  upon  earth,  a  king  was  enabled 
to  punish  offenses  against  himself  as  being  also  against  the  deity.  ^ 
Hence  were  derived  the  notions  of  the  divine  right  and  power  of 
kings,^  justice  as  emanating  from  the  king,  crimes  regarded  as 
"breaches  of  the  King's  peace,"  etc. 

Penal  Codes 

There  is  not  the  space  to  describe  the  ancient  penal  codes  of 
which  historical  records  remain.^  Among  them  are  the  criminal 
laws  of  ancient  Egypt;  the  Babylonian  code  of  Hammurabi; 
the  oldest  extant  Hindu  code,  the  Manava  Dharma  Sastra; 
the  Hindu  laws  of  Manu;  the  laws  in  the  Hebrew  scriptures, 
especially  the  Pentateuch;  the  ancient  Greek  law;  the  Twelve 
Tables  of  Rome;  the  Ta  Tsing  Leu  Lee  of  China;  the  Tai-ho 
Ritsu  of  Japan;  the  Mahommedan  criminal  law  in  the  Koran; 
the  early  Germanic  criminal  law  quoted  by  Tacitus;  the  Lex 

^Cf.  E.  Westennarck,  The  Origin  and  Development  of  the  Moral  Ideas, 
London,  1906,  Vol.  I,  p.  194.  "In  the  archaic  State  the  king  is  an 
object  of  profound  regard,  and  even  of  religious  veneration.  He  is  looked 
upon  as  a  sacred  being,  and  his  decrees  as  the  embodiment  of  divine 
justice.  The  transgression  of  any  law  he  makes  is,  therefore,  apt  to  evoke 
a  feeling  of  public  indignation  proportionate  to  the  punishment  which 
he  pleases  to  inflict  on  the  transgressor.  Again,  as  to  acts  which  are 
supposed  to  arouse  the  anger  of  invisible  powers,  the  people  are  anxious 
to  punish  them  with  the  utmost  severity  so  as  to  prevent  the  divine  wrath 
from  turning  against  the  community  itself.  But  the  fear  which,  in  such 
cases,  lies  at  the  bottom  of  the  punishment,  is  certainly  combined,  with 
genuine  indignation  against  the  offender,  both  because  he  rebels  against 
God  and  religion,  and  because  he  thereby  exposes  the  whole  commimity  to 
supernatural  dangers." 

^  The  belief  in  the  divine  right  of  kings  still  survives  even  in  certain  so- 
called  civilized  countries.  As  recently  as  July,  1916,  the  German  Emperor, 
William  II,  stated  in  a  public  address  that  he  acted  by  "divine  appoint- 
ment." {New  York  Times,  July  26,  1916,  p.  10.)  See  Morton  Prince, 
The  Psychology  of  the  Kaiser,  Boston,  1915,  Chap.  Ill,  "The  Kaiser's  Di- 
vine Right  Delusion." 

'  Brief  summaries  of  some  of  these  codes  are  to  be  found  in  the  following 
works:  L.  T.  Hobhouse,  Morals  in  Evolution,  2d  ed.,  rev.,  London,  1915, 
Chap.  3;  H.  Oppenheimer,  The  Rationale  of  Punishment,  London,.  19 13, 
Part  II,  Chap.  3;  E.  Durkheim,  De  la  division  du  travail  social,  Paris,  1893, 
Chap.  4.  See  also  the  impKjrtant  treatises  on  the  evolution  of  custom  and 
law  by  Maine,  Maitland,  F.  Seebohm,  etc. 

The  text  of  some  of  these  codes  is  to  be  found  in  A.  Kocourek  and  J.  H. 
Wigmore,  Editors,  Sources  of  Ancient  and  Primitive  Laws,  Boston,  1915. 


THE  EVOLUTION  OF  CRIMINAL   LAW  2$$ 

Salica,  probably  the  earliest  Germanic  code  of  which  we  have 
a  written  record;  an  ancient  Slavic  criminal  code  in  the  oldest 
Russian  law  book,  the  Ruska"a  Pravda;  the  ancient  English 
laws  in  the  Domesday  Book;  the  ancient  Irish  law,  or  so-called 
Brehon  law;  the  laws  of  ancient  Mexico;  the  laws  of  ancient 
Peru;  and  various  others  which  might  be  mentioned. 

There  are  many  systems  of  law  in  the  world  today.  Each 
system  has  developed  more  or  less  independently,  though  most 
of  them  have  been  influenced  at  least  a  little  by  other  systems. 
Some  of  these  legal  systems  are  to  be  found  in  barbarous  and 
semi-civilized  countries,  and  other  systems  in  civilized  countries. 

I  shall  restrict  this  discussion  to  the  legal  systems  of  coun- 
tries possessing  civilization  of  European  origin.  These  systems 
are  derived  almost  entirely  from  two  sources,  namely,  the  Roman 
civil  law  and  the  English  common  law.  The  systems  of  Roman 
origin  cover  most  of  Europe,  South  and  Central  America,  and 
smaller  areas  in  other  parts  of  the  world.  The  systems  of  com- 
mon law  origin  cover  most  of  the  British  Empire  and  most  of 
the  United  States. 

I  have  stated  above  that  in  the  early  stages  of  cultural 
evolution  many  injurious  acts  were  punished  by  private  ven- 
geance, usually  with  the  approval  of  the  community.  Most  of 
these  acts  later  became  either  public  or  private  wrongs  under 
the  law.  The  acts  that  were  regarded  as  harmful  to  the  whole 
community  became  crimes  or  public  wrongs,  to  be  punished 
under  the  criminal  law;  while  those  that  were  regarded  as  being 
harmful  only  to  individuals  became  torts  or  private  wrongs  to  be 
redressed  under  the  civil  law.  It  has  usually  been  assimied  that 
no  questions  of  moral  turpitude  are  involved  in  torts.  There  has 
always  been  and  still  is  today  more  or  less  shifting  of  wrongs 
back  and  forth  between  the  criminal  and  the  civil  law,  so  that  an 
act  which  is  at  one  time  regarded  as  a  private  wrong  is  at  another 
time  regarded  as  a  public  wrong  and  vice  versa. 

Some  writers  on  the  evolution  of  criminal  law  have  differen- 
tiated an  intermediate  type  of  law  between  criminal  and  civil 
law  which  they  have  called  penal  law.  By  this  term  they  have 
designated  the  branch  of  the  law  formerly  very  extensive  which 
enabled  individuals  to  punish  those  who  had  injured  them  by 
imposing  a  money  penalty  or  some  other  form  of  penalty  upon 
them.    But  this  branch  of  the  law  has  gradually  merged  en- 


256  CRIMINOLOGY 

tirely  or  almost  entirely  into  the  criminal  and  the  civil  law,  be- 
cause these  offenses  have  become  either  crimes  or  torts.  Other 
writers  have  applied  the  term  penal  to  all  law  which  provides 
a  penalty  for  any  kind  of  a  wrong,  whether  public  or  private.  ^ 
But  it  is  now  customary  to  use  the  term  penal  law  as  synonymous 
with  criminal  law,  and  I  shall  follow  this  usage  in  this  book. 

The  Roman  Law 

The  differentiating  of  the  criminal  from  the  civil  law  can  be 
traced  to  a  certain  extent  in  both  the  Roman  and  the  English 
law.  The  Romans  developed  much  more  fully  the  law  of  torts, 
the  law  of  contracts,  the  law  of  testamentary  succession,  etc., 
than  they  developed  the  criminal  law.  This  probably  explains 
why  the  Roman  law  is  frequently  called  the  Civil  Law  {Jtis 
Civile  or  Corpus  Juris  Civilis).^  In  the  present  work,  however, 
I  shall  use  the  term  civil  law  as  applied  to  the  branch  of  the 
law  which  has  to  do  with  private  wrongs,  contracts,  etc.,  as  dis- 
tinguished from  the  criminal  law. 

The  first  written  records  we  have  of  Roman  law  are  to  be 
found  in  the  fragments  of  the  Twelve  Decemviral  Tables  {Lex 
Duodecim  Tabularum)  which  have  been  preserved.  These  tables 
were  prepared  about  the  year  450  B.  C.,'Or  about  half  a  century 
after  the  beginning  of  the  Republic,  and  apparently  constituted 
a  sort  of  codification  of  the  existing  laws.  The  eighth  table  is 
the  tabula  de  delictis  which  contains  the  criminal  section  of  this 
code.^     Some  of  these  delicts  were  apparently  crimes  in  the 

'  Cf.  R.  R.  Cherry,  Lectures  on  the  Growth  of  Criminal  Law  in  Ancient 
Communities,  London,  1890,  p.  i.  "The  terms  Criminal  Law  and  Penal  Law 
are  by  no  means  identical.  Though  with  our  modern  notions  we  are  apt  to 
regard  them  as  so,  in  the  investigation  of  the  laws  of  early  communities 
the  distinction  between  them  must  be  clearly  attended  to.  Penal  Law  is  a 
term  of  wider  signi6cation  than  Criminal  Law;  it  means  that  branch  of 
law  which  deals  with  punishment,  by  whomsoever  imposed  and  with  what- 
soever object.  All  Criminal  Law  is  Penal  in  its  nature,  i.  e.,  it  affects  its 
ends  by  means  of  punishment,  but  all  Penal  Law  is  not  Criminal." 

^The  term  "Civil  Law"  is,  however,  sometimes  limited  to  the  Roman 
private  law.  "When  we  speak  thus  of  the  Civil  Law  we  mean  the  whole 
system  of  usages  and  rules  of  private  law  adopted  by  the  Roman  people; 
their  jus  privatum  as  opposed  to  their  jus  publicum  (including  criminal  and 
sacred  law)."    (Chas.  F.  Beach,  The  Civil  Law  in  America,  Paris,  191 2,  p.  2  ) 

*  Cf.  J.  F.  Stephen,  History  of  the  Criminal  Law  of  England,  London,  1883, 
Vol.  I,  pp.  9-1 1. 


THE   EVOLUTION   OF   CRIMINAL   LAW  257 

modern  sense  of  the  term,  namely,  offenses  against  the  public. 
Among  these  were  murder,  perjury,  and  the  making  of  dis- 
turbances at  night;  for  all  of  which  capital  punishment  in  dif- 
ferent forms  is  prescribed.  On  the  other  hand,  breaking  a  limb, 
unless  compensated  for,  was  to  be  punished  by  retaliation; 
breaking  the  tooth  or  bone  of  a  free  man  was  punishable  by  a 
fine  of  300  asses,  of  a  slave,  15  asses;  breach  of  trust  with  a  de- 
posit was  punished  by  double  damages.  It  is  evident  that  these 
offenses  were  regarded  as  private  wrongs  against  individuals, 
and  were,  therefore,  punished  by  retaliation  and  compensation. 

Later,  when  Roman  jurisprudence  had  become  well  developed, 
delicts  were  divided  into  the  following  four  classes:  —  (i)  Theft 
ifurtum);  (2)  Robbery  ivi  bonorum  rapiorum);  (3)  Injuries  to 
property  (damnum  injurice  per  legem  Aquiliam);  (4)  Injuries  to 
the  person  {injuria)}  Consequently,  these  classes  included  the 
two  principal  types  of  offenses  to  be  found  in  every  system  of 
criminal  law,  namely,  (i)  Crimes  against  property;  (2)  Crimes 
against  the  person.  Theft  was  divided  into  four  sub-classes, 
namely,  (i)  Theft  detected  in  the  commission  (furtum  manifes- 
tum);  (2)  Theft  not  so  detected  {furtum  nee  manifestum);  (3) 
Possession  of  stolen  property  discovered  upon  search  {furtum 
conceptum);  (4)  The  introduction  of  stolen  property  {furtum 
oblatum).  The  offenses  against  the  person,  or  injuries,  included 
not  only  physical  damage  to  the  body;  but  also  violations  of 
personal  freedom,  safety,  and  reputation,  namely,  assault,  libel, 
slander,  etc.  At  first  the  penalty  prescribed  by  the  Roman  law 
for  these  offenses  was  retaliation,  later  it  became  damages,  and 
finally  under  the  empire  most  of  these  injurice  came  to  be  pun- 
ished by  the  state  as  public  wrongs. 

Still  later  under  the  Empire,  in  the  days  of  Justinian,  crimes 
were  classified  as,  (i)  Puhlicajudicia;  (2)  Extraordinaria  crimina; 
(3)  Privafa  delicta}  This  classification  was  based  upon  the 
manner  of  prosecution. 

There  has  been  much  discussion  of  the  superior  development 
of  the  civil  over  the  criminal  law  in  Roman  jurisprudence.  For 
example,  Maine,  speaking  of  early  jurisprudence  with  special 
reference  to  the  Roman  system,  says:  —  "If  therefore  the  crite- 
rion of  a  delict,  wrong,  or  tort  be  that  the  person  who  suffers  it, 

1  Cf.  R.  R.  Cherry,  op.  cit.,  p.  66. 

2  Cf.  J.  F.  Stephen,  op.  cit.,  Vol.  I,  pp.  i2j". 


258  CRIMINOLOGY 

and  not  the  State,  is  conceived  to  be  wronged,  it  may  be  asserted 
that  in  the  infancy  of  jurisprudence  the  citizen  depends  for  pro- 
tection against  violence  or  fraud  not  on  the  Law  of  Crime  but 
on  the  Law  of  Tort."  ^  Cherry  suggests  three  reasons  for  the 
superior  development  of  the  Roman  civil  law,  namely,  (i)  the 
form  of  government;  (2)  the  essentially  irreligious  character  of 
the  people;  (3)  the  existence  of  slavery.^  From  509  B.  C.  to 
27  B.  C.  Rome  was  a  republic.  Consequently,  the  power  of  the 
state  was  not  so  highly  centralized  as  it  is  under  a  monarchy, 
and  there  was  not  so  great  a  development  of  the  punitive  arm 
of  the  government  as  there  usually  is  under  a  monarchical  form 
of  government. 

Cherry  asserts  that  the  Romans  did  not  punish  sins,  or  of- 
fenses against  the  gods,  because  they  believed  that  the  gods 
themselves  should  avenge  these  insults.  But  he  doubtless 
underestimated  the  extent  to  which  magical  and  religious  ideas 
influenced  Roman  jurisprudence,  so  that  his  second  reason 
is  probably  only  partially  true.  In  every  community  the  major- 
ity of  crimes  are  committed  by  the  lowest  class  of  the  popula- 
tion. In  Rome  the  lowest  class  was  composed  largely  of  slaves. 
The  masters  of  the  slaves  were  civilly  responsible  for  the  acts 
of  their  slaves,  and  could  punish  the  slaves.  So  that  the  Roman 
law  did  not  have  to  exercize  punitive  measures  for  the  restraint 
of  slaves. 

In  any  case,  whatever  may  have  been  the  reasons  for  the  slow 
development  of  the  criminal  law  under  the  Republic,  it  attained 
respectable  proportions  under  the  Empire.  Furthermore,  the 
legal  procedure  developed  in  the  Roman  jurisprudence  has  had 
a  great  influence,  both  directly  and  through  the  canon  law.  It 
must  also  be  remembered  that  the  criminal  law  and  the  civil 
law  are  always  closely  related,  and  that  an  efficient  system  of 
civil  law  usually  lessens  the  amount  of  crime,  thus  reacting  upon 
the  criminal  law.  So  that  in  various  ways  Roman  jurisprudence 
has  had  much  influence  upon  modern  criminal  law. 

The  English  Common  Law 
The  English  criminal  law  has  developed  from  several  sources. 
It  is  difficult  to  ascertain  to  what  extent  it  can  be  traced  back 

^  H.  S.  Maine,  Ancient  Law,  London,  189 1,  p.  371. 
'  R.  R.  Cherry,  op.  cil.,  p.  75. 


THE   EVOLUTION   OF  CRIMINAL  LAW  259 

to  the  prehistoric  inhabitants  of  the  British  Isles,  since  ahnost 
no  records  remain  of  the  legal  system  of  those  inhabitants.  The 
best  record  extant  is  of  the  ancient  Irish  or  so-called  Brehon 
law,  which  remained  in  force  in  a  remarkably  archaic  form 
through  several  centuries  of  the  Christian  era.  This  system 
of  law  furnishes  some  indication  of  what  the  primitive  law  in 
Britain  must  have  been  like,  as  well  as  throwing  a  good  deal 
of  light  upon  the  early  evolution  of  jurisprudence.^ 

For  several  centuries  the  Romans  held  Britain  as  a  colony. 
During  this  period  they  introduced  the  Roman  law  as  well  as 
the  rest  of  the  Roman  culture,  and  developed  a  high  degree  of 
civilization  in  this  colony.  But  it  is  difficult  to  ascertain  how 
much  of  their  law  remained  behind  when  they  evacuated  Britain 

^  The  Brehon  law  has  been  briefly  described  in  the  following  words: 
"The  study  of  the  Brehon  Law  thus  enables  us  to  trace  the  progress  of 
primitive  ideas  as  to  penal  legislation  generally.  The  earliest  source  to 
which  we  can  trace  back  Penal  Law  is  the  principle  of  simple  retaliation  — 
an  eye  for  an  eye,  a  tooth  for  a  tooth,  life  for  life.  This  retaliation  was  not 
imf>osed,  but  simply  permitted  by  society.  The  next  step  is  the  custom  of 
buying  off  vengeance,  either  by  the  individual  who  has  inflicted  the  injury, 
or  his  tribe.  A  pecuniary  payment  thus  comes  to  be  looked  upon  as  a  satis- 
faction for  a  crime.  The  wrong-doer  gains  his  life:  the  injured  man  some- 
thing valuable,  in  lieu  of  useless  vengeance,  his  pride  at  the  same  time  being 
appeased  by  the  submission:  society  is  benefited  by  an  end  being  put  to 
disturbance  and  fighting.  Once  the  custom  becomes  general,  disputes  will 
certainly  arise  as  to  the  amount  of  the  payment.  If  the  parties  cannot 
come  to  terms  both  will  lose;  to  avoid  such  a  contingency  they  agree  to 
refer  it  to  the  arbitration  of  the  person  who  is  most  likely  to  know  what  was 
usually  the  amount  paid  in  similar  cases  —  this  is  the  poet  of  the  tribe, 
whose  duty  it  is  to  recite  its  history  at  the  tribal  meetings.  The  ancient 
Irish  Law  expressly  tells  us  that  in  former  times  the  legal  jurisdiction  was 
vested  in  the  poets.  The  next  step  is  the  direct  intervention  of  the  tribe 
itself,  or  its  chief.  The  conduct  of  the  man  who  refuses  to  submit  his  case 
to  arbitration  is  plainly  unreasonable.  The  whole  tribe  is  interested  in 
preserving  peace  —  his  conduct  imperils  it  —  they  will  endeavour  to  force 
him  to  submit.  The  retaliative  principle  again  recurs  here.  If  he  refuses 
to  pay  fines,  what  more  natural  than  to  refuse  to  allow  him  to  recover  them? 
His  honour-price  is  forfeited,  and  thereby  he  at  once  becomes  a  'lawless  man,' 
whom  anybody  may  kill  with  impunity.  The  prototype  of  a  modern  crim- 
inal trial  then  appears  in  the  solemn  proclamation  at  the  tribal  meeting, 
by  the  King  or  chief,  of  this  sentence  of  outlawry.  We  have  no  direct  evi- 
dence that  the  Brehon  Law  ever  attained  to  this  latter  stage  of  develop^ 
ment  —  at  all  events  it  never  passed  beyond  it."  (R.  R.  Cherry,  op.  cit., 
pp.  38-9.) 
See  also  Laurence  Ginnell,  The  Brehon  Laws,  London,  1894. 


26o  CRIMINOLOGY 

in  the  fifth  century  of  the  present  era.^  It  may  have  left  a  few 
traces  at  that  time.  It  goes  without  saying  that  later  it  had 
some  influence  indirectly  through  the  relations  between  England 
and  the  Continental  countries,  especially  through  the  canonical 
law  which  influenced  English  equity  jurisprudence  greatly. 
However,  it  is  probable  that  the  influence  of  Roman  jurispru- 
dence upon  the  evolution  of  English  law  has  been  comparatively 
slight. 

Then  came  invasions  of  Britain  by  various  peoples  from 
Northern  Europe,  especially  by  two  Teutonic  tribes,  the  Angles 
and  the  Saxons.  The  Anglo-Saxons  made  the  principal  contri- 
bution to  the  law  as  they  did  to  the  language  and  to  other 
phases  of  the  culture  of  the  English.  Later  came  the  Norman 
Conquest.  But  comparatively  few  Normans  appear  to  have 
settled  in  England.  Furthermore,  the  Normans  also  were  of 
Teutonic  origin,  and  had  derived  much  of  their  jurisprudence 
as  well  as  other  phases  of  their  culture  from  Teutonic  sources, 
though  they  had  acquired  a  language  of  Latin  origin.  So  that 
the  Normans  seem  to  have  had  comparatively  little  effect  upon 
English  jurisprudence,  though  they  had  considerable  influ- 
ence upon  the  English  language. 

Let  us  now  discuss  briefly  the  principal  traits  of  the  early 
English  criminal  law.^  Like  every  other  system  of  punitive  law 
it  gives  evidence  of  being  based  in  large  part  upon  the  principle 
of  retaliation,  the  lex  talionis.  In  the  Anglo-Saxon  and  in  the 
early  English  law  many  off"enses  against  persons  and  property 
were  compounded.  Three  kinds  of  compensation  may  be  men- 
tioned which  were  to  be  paid  according  to  the  nature  of  the 
case.  Bot  was  a  general  term  for  compensation  of  any  kind, 
but  was  applied  more  particularly  to  compensation  which 
varied  according  to  the  nature  of  the  act  committed.  In  case 
of  theft  it  amounted  to  as  much  as  or  more  than  the  value  of 
the  stolen  goods.    The  wergild,  or  wer,  was  the  price  of  a  man 

^  Cf.  L.  O.  Pike,  A  History  of  Crime  in  England,  London,  1873,  Vol.  I, 
Chap.  1. 

*  For  more  extended  discussions  of  this  subject  see  the  historical  works 
of  Pollock  and  Maitland,  Holdsworth,  Stephen,  etc.  A  very  brief  descrip- 
tion is  given  by  H.  L.  Carson  in  an  article  entitled,  A  Sketch  of  the  Early 
Development  of  English  Criminal  Law  as  Displayed  in  Anglo-Saxon  Law,  in 
the  Jour.  Critn.  Law,  Vol.  VI,  No.  5,  Jan.,  1916,  pp.  648-662. 


THE   EVOLUTION   OF  CRIMINAL   LAW  261 

which  was  determined  by  his  rank,  and  was  paid  to  his  relatives 
in  case  of  his  death.  But  the  iver  was  also  sometimes  the  amount 
to  be  paid  by  a  man  when  he  had  committed  certain  offenses 
other  than  murder.  The  wite  was  a  fine  to  be  paid  to  the  king 
as  a  penalty  for  the  breach  of  his  peace,  or  to  some  other  public 
authority. 

If  an  offender  failed  to  pay  the  compensation  imposed  upon 
him,  he  was  outlawed.  This  meant  that  he  lost  all  rights  of 
person  and  property,  that  he  lost  his  wergild,  and  therefore 
could  be  killed  with  impunity.  The  wite  and  outlawry  mark 
steps  towards  treating  offenses  as  public  rather  than  as  private 
wrongs,  for  outlawry  became  a  sort  of  public  punishment  im- 
posed and  enforced  by  the  courts,  and  the  wite  was  an  exercize 
of  power  on  the  part  of  the  king  or  some  other  public  authority 
for  the  administration  of  justice.  This  brings  us  to  the  subject 
of  the  king's  peace,  which  became  one  of  the  principal  instru- 
ments for  the  development  of  a  true  system  of  criminal  law  in 
England. 

The  king's  peace  began  as  a  requirement  that  order  must  be 
maintained  in  the  immediate  vicinity  of  the  king.  Consequently, 
if  a  crime  was  committed  within  this  region,  it  became  not  only 
an  offense  against  the  individual  victim  or  victims  of  the  crime, 
but  also  a  breach  of  the  king's  peace,  and  therefore  an  offense 
against  him  which  he  had  the  right  to  punish.  At  first  the 
king's  peace  extended  only  over  a  small  area  where  he  happened 
to  be,  and  for  a  short  distance  around  his  palaces  and  castles. 
Later  it  was  extended  to  other  regions,  as,  for  example,  the 
public  highway,  and  finally  covered  the  whole  kingdom.  At 
first  the  peace  did  not  exist  during  an  interregnum  between  two 
reigns,  which  therefore  was  a  time  of  great  disorder.  But  later 
the  peace  became  uninterrupted  in  time. 

Various  factors  played  a  part  in  making  the  king's  peace 
universal  in  extent.^  Probably  the  most  important  factor  was 
the  increase  in  the  power  of  the  king  and  of  the  state.  This  was 
particularly  true  after  the  Norman  Conquest.  In  fact,  it  was 
during  the  reign  of  William  the  Conqueror  that  the  king's  peace 
was  extended  over  the  whole  kingdom.  Another  reason  was 
an  increase  in  the  number  of  offenses  which  could  not  be  com- 

^  Cf.  W.  S.  Holdsworth,  A  History  of  English  Law,  London,  1909,  Vol.  TI, 
pp.  38-40. 


262  CRIMINOLOGY 

pensated  with  money.  These  included  treasonable  offenses, 
offenses  against  morality  and  religion,  etc.  Such  offenses  would 
escape  punishment  if  not  punished  by  the  king.  Another  reason 
may  have  been  an  increasing  number  of  persons  who  lacked 
kindred  who  could  avenge  offenses  against  them.  Such  persons 
might  be  manumitted  slaves,  members  of  a  conquering  people 
such  as  the  Normans  who  had  left  their  kindred  behind,  etc. 
In  such  cases  it  would  become  necessary  for  the  king  to  take  the 
place  of  the  kindred  in  inflicting  vengeance.  The  church  also 
probably  encouraged  the  extension  of  the  king's  peace  by  sup- 
porting the  state,  and  by  sanctifying  the  kingship. 

The  development  of  the  king's  peace  in  England  is  an  inter- 
esting example  of  the  influence  of  the  monarchy  upon  the  evolu- 
tion of  criminal  law.  It  may  be  compared  with  a  similar  peace 
established  by  sovereigns  in  other  countries,  but  it  is  doubtful 
if  a  royal  peace  was  extended  in  any  other  country  so  far  as  it 
was  extended  in  England.  It  may  also  be  compared  with  the 
truce  of  God  {treuga  Dei)  declared  many  times  by  ecclesiastics 
of  the  church  and  sometimes  by  sovereigns  during  the  feudal 
period  on  the  Continent  in  the  effort  to  put  a  check  upon  private 
war. 

The  extension  of  the  power  of  the  king  through  the  king's 
peace  led  to  many  harsh  and  cruel  forms  of  punishment,  some 
of  which  persisted  down  to  recent  times.  But  it  must  be  re- 
membered that  the  extension  of  the  king's  power  came  at  a 
time  when  life  and  property  received  comparatively  little  pro- 
tection, and  when  there  was  great  need  for  a  strong  central 
authority.  The  institution  of  monarchy  provided  this  pro- 
tection, and  the  tradition  of  the  monarchical  authority  is  per- 
petuated to  the  present  day  in  the  indictment  and  other  forms 
of  prosecution  in  which  is  assumed  the  legal  fiction  that  crimes 
are  offenses  against  the  king  and  the  crown. 

The  common  law,  therefore,  has  its  roots  mainly  in  the  Anglo- 
Saxon  jurisprudence.  Since  the  establishment  of  the  king's 
peace  it  has  been  developed  by  the  decisions  of  courts  and  the 
statutes  passed  by  Parliament.  In  the  evolution  of  the  common 
law  is  exemplified  the  transition  from  the  time  when  the  major- 
ity of  offenses  were  private  wrongs  or  torts  to  be  punished  by 
blood-feud  or  composition  to  the  time  when  many  of  these 
became  public  wrongs  or  crimes  in  the  strict  sense  of  the  term 


THE  EVOLUTION  OF  CRIMINAL  LAW  26j 

to  be  punished  by  the  state.  ^  So  that  the  common  law  furnishes 
an  interesting  and  striking  example  of  the  more  or  less  sponta- 
neous and  unintended  development  of  organized  social  control.^ 

^  "On  the  eve  of  the  Norman  Conquest  what  we  may  call  the  criminal  law 
of  England  (but  it  was  also  the  law  of  'torts'  or  civil  wrongs)  contained 
four  elements  which  deserve  attention;  its  past  history  had  in  the  main 
consisted  of  the  varying  relations  between  them.  We  have  to  speak  of  out- 
lawry, of  the  blood-feud,  of  the  tariffs  of  wer  and  bdt  and  wUe,  of  punish- 
ment in  life  and  limb.  As  regards  the  malefactor,  the  community  may 
assume  one  of  four  attitudes:  it  may  make  war  upon  him,  it  may  leave  him 
exposed  to  the  vengeance  of  those  whom  he  has  wronged,  it  may  suffer  him 
to  make  atonement,  it  may  inflict  on  him  a  determinate  punishment,  death, 
mutilation,  or  the  like."  (F.  Pollock  and  F.  W.  Maitland,  The  History  of 
English  Law  Before  the  Time  of  Ed-ward  I,  Cambridge,  1895,  Vol.  II,  p.  447.) 

2  The  evolution  of  public  justice  has  been  well  summarized  by  another . 
writer  in  the  following  words:  — 

"  Briefly  to  resume  the  main  phases  in  the  evolution  of  public  justice,  we 
find  that  at  the  outset  pure  anarchy  or  self-redress  is  qualified  first  by  the 
sense  of  solidarity  within  the  primary  social  unit.  This  expresses  itself  first 
in  the  repression  of  offences,  especially  of  a  sacral  character,  held  dangerous 
to  the  group  as  a  whole,  and  then  in  the  control  of  self-redress.  As  between 
the  primary  units  a  system  of  collective  self-redress  arises  which  in  turn 
yields  to  the  authority  of  chief  or  council  representing  the  larger  community 
as  a  whole.  As  long  as  the  vindication  of  rights  rests  mainly  in  the  hands 
of  the  kindred  or  other  group,  responsibility  is  collective,  intention  is  apt 
to  be  ignored  and  punishment  is  not  assessed  according  to  the  merit  of  the 
individual.  When  retaliation  is  mitigated  by  the  introduction  of  money 
payments  no  change  in  ethical  principle  occurs.  It  is  only  as  social  order 
evolves  an  independent  organ  for  the  adjustment  of  disputes  and  the  pre- 
vention of  crime,  that  the  ethical  idea  becomes  separated  out  from  the  con- 
flicting passions  which  are  its  earlier  husk,  and  step  by  step  the  individual  is 
separated  from  his  family,  his  intentions  are  taken  into  account,  his  formal 
rectitude  or  want  of  rectitude  is  thrown  into  the  background  by  the  essential 
justice  of  the  case,  appeals  to  magical  processes  are  abandoned,  and  the  law 
sets  before  itself  the  aim  of  discovering  the  facts  and  maintaining  right  or 
punishing  wrong  accordingly. 

"The  rise  of  public  justice  proper  necessitates  the  gradual  abandonment 
of  the  whole  conception  of  the  trial  as  a  struggle  between  two  parties,  and 
substitutes  the  idea  of  ascertaining  the  actual  truth  in  order  that  justice 
may  be  done.  That  is  at  first  carried  out  by  supernatural  means,  viz.,  by 
the  Ordeal  and  the  Oath.  These  in  turn  give  way  to  a  true  judicial  inquiry 
by  evidence  and  rational  proof.  The  transition  occurred  in  England  mainly 
during  the  thirteenth  century,  the  turning  point  being  marked  by  the  pro- 
hibition of  the  Ordeal  by  Innocent  III,  in  1215.  The  early  stages  of  public 
justice  administered  by  the  recently  developed  central  power  led  to  exces- 
sive barbarity  in  the  discovery  and  punishment  of  crime.  It  took  some 
more  centuries  to  prove  to  the  world  that  efficacy  in  these  relations  could 


264  CRIMINOLOGY 

It  is  unfortunate  that  Anglo-American  jurisprudence  has  not 
been  influenced  more  by  the  Roman  law.  The  legal  systems 
based  upon  the  Civil  Law  have  usually  been  codified,  and  have 
revealed  the  philosophic  spirit  and  the  orderly  arrangement 
characteristic  of  the  Roman  law.  The  most  notable  modern 
example  of  this  sort  is  the  Code  Napoleon,  created  at  the  begin- 
ning of  the  nineteenth  century  by  order  of  Napoleon  the  First, 
which  incorporated  a  large  part  of  the  Civil  Law,  and  which  still 
constitutes  a  large  part  of  the  jurisprudence  of  France  as  well  as 
of  many  other  countries. 

The  common  law,  on  the  contrary,  evolved  in  a  more  or  less 
hit-or-miss  fashion  from  judicial  decisions,  some  of  which  have 
been  good,  while  other  decisions  have  been  exceedingly  bad.  The 
constant  search  for  precedents  inevitably  dulls  the  philosophic 
sense.  Consequently,  as  I  have  said  in  my  book  on  criminal 
procedure,  "English  and  American  jurists  and  legal  writers  have 
concerned  themselves  very  little  with  the  philosophic  aspect  of 
the  principles  they  have  studied,  being  principally  interested  in 
tracing  them  to  their  origin  in  judicial  decisions.  This  is  quite  in 
contrast  with  Continental  jurists  and  writers  who  have  always 
paid  a  great  deal  of  attention  to  the  philosophic  aspect  of  legal 
principles.  It  has  been  a  great  loss  to  our  law  that  it  has  not 
been  treated  in  this  philosophic  spirit.  This  treatment  would 
be  a  valuable  criticism  of  some  principles,  in  the  case  of  others 
it  would  greatly  broaden  their  application.  Especially  true  is 
this  of  criminal  law  which  should  always  keep  the  pace  with  the 
sciences  and  philosophy  which  deal  with  social  relations.  The 
fundamental  nature  and  the  ultimate  object  of  criminal  law 
should  always  be  kept  in  view,  and  its  applications  always  ad- 
justed to  the  current  conception  of  this  object."  ^ 

Crimes  Classified  as  Acts 

The  simplest  method  of  classifying  crimes  is  by  means  of  a 
category  of  acts,  that  is  to  say,  by  grouping  together  the  criminal 

be  reconciled  with  humanity  and  a  rational  consideration  of  the  best  means 
of  getting  at  truth.  By  so  long  and  roundabout  a  process  is  a  result,  so 
simple  and  obvious  to  our  minds,  attained."  (L.  T.  Hobhouse,  Morals  in 
Evolution,  2d  ed.,  rev.,  London,  1915,  pp.  130-131.) 

^  The  Principles  of  Anthropology  and  Sociology  in  Their  Relations  to  Crim- 
inal Procedure,  New  York,  1908,  pp.  182-183. 


THE  EVOLUTION  OF  CRIMINAL  LAW  265 

acts  which  are  similar  to  each  other.  Thus  all  forms  of  homicide 
would  be  grouped  together,  all  forms  of  theft  would  be  grouped 
together,  etc.  This  method  of  classification  is  frequently  used  in 
penal  codes.  But  legal  classifications  of  crimes  are  also  fre- 
quently based  upon  the  kinds  of  procedure  used  in  trying  crim- 
inal cases  and  upon  the  degrees  of  severity  of  the  punishments 
inflicted.  Another  method  of  classifying  crimes  which  is  not  fre- 
quently used  in  legal  classifications  is  the  functional  method,  that 
is  to  say,  according  to  the  purposes  to  be  attained  by  punishment. 

In  the  common  law  there  gradually  evolved  a  three-fold 
classification  of  crimes,  namely,  (i)  Treason;  (2)  Felony;  (3)  Mis- 
demeanor. Treason  seems  at  first  to  have  been  regarded  as  one 
of  the  felonies,  but  in  course  of  time  became  sharply  differen- 
tiated. It  is  by  definition  an  act  which  is  directed  at  the  exist- 
ence of  the  state  itself.  But  in  the  old  English  law  many  acts 
directed  against  the  king  and  members  of  the  royal  family  were 
treasonable,  and  the  same  is  still  true  of  several  of  these  acts. 
As  to  whether  or  not  these  acts  should  be  classified  as  treasonable 
depends,  of  course,  upon  whether  or  not  they  are  in  reality  di- 
rected against  the  state  itself,  and  this  in  turn  depends  upon 
the  nature  of  the  state.  In  all  probability  in  the  great  majority 
of  cases  it  has  not  been  justifiable  to  classify  acts  against  the 
royal  family  as  treasonable,  for  they  have  not  menaced  the 
existence  of  the  state  itself,  and  such  criminal  laws  have  been 
examples  of  the  abuse  of  monarchical  power. 

The  felonies  were  originally  the  offenses  which  were  un- 
emendable,  that  is  to  say,  which  could  not  be  compounded  be- 
cause of  their  heinousness.^  They  were  punished  by  the  for- 
feiture of  the  criminal's  estate,  and  frequently  of  his  life.  There 
were  seven  felonies  distinctly  recognized  by  the  common  law, 
three  of  which  are  against  the  person,  namely,  murder,  man- 
slaughter, and  rape;  and  four  of  which  are  against  the  property 
of  individuals,  namely,  arson,  burglary,  theft  or  larceny,  and 
robbery.    Three  other  crimes,  namely,  wounding,  mayhem,  and 

^  See,  for  a  discussion  of  the  evolution  of  felony,  Pollock  and  Maitland, 
op.  cit.,  Vol.  II,  pp.  460-509.  "At  all  events  this  word,  expressive  to  the 
common  ear  of  all  that  was  most  hateful  to  God  and  man,  was  soon  in  Eng- 
land and  Normandy  a  general  name  for  the  worst,  the  utterly  'bootless' 
crimes.  In  later  days  technical  learning  collected  around  it  and  gave  rise 
to  complications,  insomuch  that  to  define  a  felony  became  impossible;  one 
could  do  no  more  than  enumerate  the  felonies."    (P.  464.) 


266  CRIMINOLOGY 

false  imprisonment,  have  at  one  time  or  another  been  called 
felonies;  while,  as  we  have  seen,  treason  was  apparently  orig- 
inally a  felony.  But  to  these  so-called  common  law  felonies 
have  been  added  by  means  of  statutes  enacted  by  Parliament 
numerous  other  felonies,  so  that  the  total  number  of  felonies  is 
now  very  great. 

The  misdemeanors,  originally  known  as  "transgressions"  or 
"trespasses,"  were  and  are  still  the  crimes  less  grave  than  the 
felonies.  But  in  recent  years  there  has  been  recognized  a  group 
of  petty  offenses  which  are  distinguished  both  from  felonies  and 
misdemeanors,  because  they  are  tried  by  a  modern  method  of 
summary  procedure  without  a  jury.  No  suitable  name  has  as 
yet  been  applied  to  them.  The  term  "trespass"  could  appro- 
priately be  revived  and  applied  to  this  group  of  the  most  trivial 
of  crimes. 

A  present  day  authority  on  English  criminal  law  has  classified 
crimes  in  that  law  in  the  following  manner:  —  ^ 

"Public  wrongs.  Pleas  of  the  Crown,  or  —  to  use  a  phrase  more 
familiar  but  more  ambiguous  —  Crimes,  may  be  arranged,  ac- 
cording to  their  technical  degrees  of  importance,  in  the  following 
series  of  groups. 

"I.  Indictable  offences;  i.  e.,  those  which  admit  of  trial  by 
jury. 

"(i)  Treasons, 

"  (2)  (Other)  Felonies, 

"(3)  Misdemeanors. 

"II.  Petty  offences,  i.  e.,  those  which  are  tried  summarily  by 
justices  of  the  peace  sitting  without  a  jury." 

The  criminal  law  of  all  of  the  United  States,  with  the  excep- 
tion of  one  state  (Louisiana),  is  based  upon  the  English  common 
law.  In  this  country  treason  consists  of  acts  committed  against 
the  United  States  or  against  an  individual  state.  The  common 
law  felonies  are  included  in  most  if  not  all  of  the  American  penal 
codes,  and  also  many  of  the  English  statute  felonies  and  mis- 
demeanors. The  common  law  classification  is  also  followed  in  a 
general  way.  For  example,  the  New  York  State  Penal  Code 
gives  the  following  classification  of  crimes:  —  ^ 

^  C.  S.  Kenny,  Outlines  of  Criminal  Law,  Cambridge,  IQ02,  p.  qi. 
*  Petial  Law  of  the  State  of  New  York,  edited  by  A.  J.  Parker,  New  York, 
1915,  Art.  I,  Sec.  2. 


THE   EVOLUTION   OF   CRIMINAL   LAW  267 

"Division  of  crime.    A  crime  is 

"i.  A  felony;  or, 

"2.  A  misdemeanor. 

"Felony.  A  'felony'  is  a  crime  which  is  or  may  be  punishable 
by 

"i.  Death;  or, 

"  2,  Imprisonment  in  a  state  prison. 

"Misdemeanor.    Any  other  crime  is  a  'misdemeanor.'" 

The  classifications  which  have  so  far  been  mentioned  have 
been  determined  mainly  by  legal  considerations,  that  is  to  say, 
by  the  different  kinds  of  procedure  used  and  the  degrees  of 
punishment  inflicted.  The  same  is  true  of  the  criminal  law  of 
Continental  countries,  which  is  based  in  the  main  upon  Roman 
jurisprudence. 

In  the  French  penal  code  offenses  are  divided  into  three 
classes,  namely,  crimes,  misdemeanors,  and  trespasses  (crimes, 
delits,  et  contraventions),  according  to  the  penalties  prescribed 
by  the  law.^  Crimes  {crimes),  which  are  the  most  serious 
offenses,  are  punished  by  death,  penal  servitude,  transportation, 
mihtary  imprisonment,  soHtary  confinement,  banishment,  or 
civil  degradation.  Misdemeanors  (d/lits),  which  are  less  serious, 
are  punished  by  imprisonment  for  over  five  days,  fine  of  over 
fifteen  francs,  or  deprivation  of  the  exercize  of  certain  civil  and 
family  rights.  Trespasses  (contraventions),  the  most  trivial  of 
offenses,  are  punished  by  imprisonment  from  one  to  five  days,  or 
by  a  fine  of  from  one  to  fifteen  francs.  This  classification  has 
been  adopted  by  the  majority  of  the  Continental  codes,  as,  for 
example,  by  the  German  code  of  1870,  and  was  retained  in  the 
Belgian  code  of  1867.^ 

A  bipartite  classification  of  offenses  was  adopted  by  the  Dutch 
code  of  1 88 1,  and  in  the  Italian  code  of  1889.  According  to 
this  classification  offenses  are  divided  into  misdemeanors  and 
trespasses  (delits  et  contraventions).  Misdemeanors  are  offenses 
of  every  degree  of  gravity  which  are  intentional  and  immoral. 
Trespasses  are  unintentional  offenses,  which  are  therefore  pre- 
sumably not  immoral. 

^  Cf.  E.  Jarno,  in  The  Penal  Codes  of  France,  Germany,  Belgium  and  Japan, 
edited  by  S.  J.  Barrows,  Washington,  1901,  pp.  15-17.  See  also  Les  codes 
de  la  republique  francaise,  edited  by  A.  F.  Teulet,  Paris,  1881. 

*  Cf.  F.  von  Liszt,  Editor,  Le  droit  criminal  des  Stats  curopicns,  Berlin,  1894. 


268  CRIMINOLOGY 

Let  us  now  consider  the  acts  themselves  which  have  been  and 
are  stigmatized  as  criminal.  We  find  ourselves  before  a  bewilder- 
ing array,  because  at  one  time  or  another  a  vast  number  of  acts 
have  been  criminal.  It  is  therefore  impossible  to  prepare  a 
universal  category  of  crimes.  Many  acts  which  at  certain  times 
and  places  have  been  criminal  have  at  other  times  and  places 
been  regarded  as  moral.  In  order  to  illustrate  in  a  concrete 
instance  the  range  of  acts  stigmatized,  I  will  enumerate  some 
of  the  acts  which  under  given  conditions  are  criminal  according 
to  the  New  York  State  Penal  Code.  Among  them  are  abduc- 
tion, abortion,  adultery,  anarchy,  arson,  assault,  attempt  to 
commit  crime,  bigamy,  bribery  and  corruption,  burglary,  com- 
pounding crime,  contempt  of  court,  crime  against  nature,  dis- 
orderly conduct,  dueling,  extortion  and  threats,  forgery,  fraud 
and  cheats,  gambling,  homicide,  incest,  indecency,  intoxication, 
kidnapping,  larceny,  libel,  maiming,  mahcious  mischief,  nuis- 
ances, perjury  and  subornation  of  perjury,  prize-fighting  and 
sparring,  rape,  riots  and  unlawful  assemblies,  robbery,  sabbath- 
breaking,  seduction,  suicide,  treason,  usury. 

But  a  mechanical,  alphabetical  enumeration  of  criminal 
acts  does  not  furnish  a  clear  picture  of  the  kinds  of  acts  stigma- 
tized by  the  criminal  law.  A  better  picture  is  furnished  by  means 
of  a  functional  classification,  in  which  crimes  are  classified 
according  to  the  ends  subserved  by  the  law. 

Functional  Classifications  of  Crimes 

A  clearcut  functional  classification  which  is  frequently  used  is 
the  following:  — 

1.  Protection  of  the  person  (life  and  limb). 

2.  Protection  of  private  property. 

3.  Protection  of  government  and  other  public  interests. 

It  is  easy  to  classify  the  great  majority  of  crimes  under  one 
or  another  of  these  three  heads,  though  doubt  may  arise  as  to 
the  correct  classification  of  a  few  crimes.  Furthermore,  there 
are  few  if  any  crimes  which  do  not  fall  under  one  or  another  of 
these  classes.^ 

*  Stephen  gives  a  classification  similar  to  the  above  but  a  little  more  de- 
tailed, op.  cit.,  Vol.  I,  p.  3. 


THE  EVOLUTION  OF  CRIMINAL  LAW  269 

Another  classification  which  is  less  clearcut  but  more  detailed 
is  the  following:  —  ^ 

1.  Crimes  against  public  justice. 

2.  Crimes  against  public  peace. 

3.  Crimes  against  public  trade. 

4.  Crimes  against  public  health. 

5.  Crimes  against  public  policy. 

6.  Crimes  against  the  persons  of  individuals, 

7.  Crimes  against  the  property  of  individuals. 

8.  Attempts. 

9.  Solicitations. 

This  classification  has  been  somewhat  influenced  by  legal 
considerations,  but  is  in  the  main  functional  in  character.^ 

Another  functional  classification,  proposed  by  Durkheim,  is 
based  upon  the  collective  feelings  or  sentiments  which  are 
violated  by  the  criminal  acts.^ 

Laws  Prohibiting  Acts  Contrary  to  the  Collective  Sentiments 

I 
Having  General  Objects 

1.  Religious  sentiments. 

2.  National  sentiments.    (Treason,  civil  war,  etc.) 

3.  Domestic  sentiments. 

4.  Sentiments  with  regard  to  sexual  relations. 

^  W.  C.  Robinson,  Elementary  Law,  Boston,  1882. 

*  Freund  suggests  the  following  classification: 
(i)  Political  offenses. 

(2)  Statute  violations. 

(3)  Administrative  crimes. 

(4)  Police  offenses. 

(s)  Crimes  against  morality. 

(6)  Common  or  ordinary  crimes. 

He  alleges  that  in  this  classification  crimes  have  been  grouped  "according 
to  the  great  categories  of  the  interest  attacked  or  violated."  But  it  is  dif- 
ficult to  discover,  even  with  the  aid  of  his  own  explanation,  any  consistent 
principle  underlying  it,  and  it  is  obviously  much  confused.  (E.  Freund, 
Classification  and  Definition  of  Crimes,  in  the  Jour.  Crim.  Law,  Vol.  V,  No.  6, 
Mar.,  1915,  pp.  807-827.) 

For  a  more  intensive  discussion  of  the  classification  of  crimes  see,  R.  de 
la  Grasserie,  De  la  classification  des  actes  criminels,  in  the  Revue  internationale 
de  sociologie,  Vol.  IX,  No.  8-9,  Aug.-Sept.,  1901,  pp.  613-632. 

•  E.  Durkheim,  De  la  division  du  travail  social,  Paris,  1893,  pp.  166-8. 


270  CRIMINOLOGY 

5.  Sentiments  with  regard  to  work.  (Mendicancy,  vagrancy, 
etc.). 

6.  Various  traditional  sentiments  with  regard  to  professional 
usages,  food,  dress,  ceremonial,  etc. 

7.  Sentiments  with  regard  to  the  organ  of  the  common  con- 
sciousness.   (Rebellion,  political  corruption,  etc.) 

II 
Having  Individual  Objects 

1.  Sentiments  with  regard  to  the  person. 

2.  Sentiments  with  regard  to  private  property. 

3.  Sentiments  with  regard  to  groups  of  individuals,  either 
concerning  their  persons,  or  their  property.  (Counterfeiting, 
bankruptcy,  arson,  etc.) 

This  classification  is  suggestive  of  a  psychological  basis,  but 
it  is  rather  vague,  and  seems  to  overlap  in  some  cases  (as,  for 
example,  I,  2,  and  7). 

A  Subjective  Classification  of  Crimes 

With  the  exception  of  the  last  one,  the  classifications  which 
have  been  cited  are  mainly  objective  in  their  character.  They 
are  based  largely  upon  the  material  things  which  are  injured  by 
the  crimes,  such  as  the  persons  of  the  victims,  their  property, 
etc.  But  in  many  cases  the  things  which  are  injured  are  rela- 
tionships which  are  not  material  in  their  character.  In  fact, 
it  might  be  possible  to  classify  most  if  not  all  crimes  according 
to  the  relationships  violated  by  them.  There  would  be  the 
crimes  which  violate  parental  and  filial  relations,  those  which 
violate  sexual  and  conjugal  relations,  those  which  violate  the 
relations  between  the  state  and  the  citizen,  etc.  Such  a  classi- 
fication of  crimes  would  vary  from  time  to  time  and  from  place 
to  place  according  to  the  kinds  of  relations  which  existed,  and 
the  rights  which  had  arisen  out  of  these  relations. 

A  subjective  classification  also  might  be  devized  which  would 
be  based  upon  the  mental  traits  violated  or,  to  say  the  least, 
aroused  by  the  crimes.  These  would  include  the  instincts,  the 
feelings,  the  ideas  which  mankind  has  acquired,  and  the  senti- 
ments which  are  associations  of  ideas  and  feelings.  So  that 
crimes  would  be  classified  according  to  whether  they  aroused 
the  instinct  of  pugnacity  or  the  emotion  of  anger,  whether  they 


THE   EVOLUTION   OF  CRIMINAL   LAW  271 

opposed  the  sexual  instincts  or  violated  the  parental  feelings, 
whether  they  were  incompatible  with  prevailing  economic  and 
political  ideas,  or  whether  they  violated  patriotic  and  religious 
sentiments.  A  thoroughgoing  classification  of  this  sort  would 
be  very  elaborate  and  complex,  and  would  require  for  its  prep- 
aration an  extensive  knowledge  of  psychology  and  sociology. 
Such  a  classification  also  would  vary  from  time  to  time  and 
from  place  to  place,  because  ideas  and  sentiments  change  greatly, 
and  the  instincts  and  feelings  are  much  influenced  by  habit 
and  custom,  though  their  character  as  hereditary  traits  change 
very  little  if  at  all. 

Relation  between  the  Criminal  and  the  Civil  Law 

Earlier  in  this  chapter  it  has  been  noted  that  there  is  constant 
shifting  back  and  forth  between  the  criminal  and  the  civil  law, 
owing  to  changes  in  social  conditions  and  public  opinion.  Thus 
a  violation  of  a  contract  or  a  private  wrong  or  tort  may  become 
a  public  wrong  or  crime,  or  vice  versa.  For  example,  it  was  cus- 
tomary formerly  to  imprison  debtors  as  if  they  were  criminals. 
Today  the  law  usually  regards  a  debt  as  a  violation  of  a  contract. 
This  is  doubtless  correct  in  most  cases,  since  most  debtors  fail 
to  pay  their  debts  because  they  are  unable  to  do  so.  It  must, 
however,  be  remembered  that  there  are  fraudulent  as  well  as 
honest  debtors,  namely,  debtors  who  have  never  intended  to 
repay  their  debts,  and  who  should,  therefore,  be  treated  as 
criminals. 

In  large  cities  there  are  numerous  regulations  such  as  munic- 
ipal ordinances  regarding  sanitation,  tenement  houses,  traffic, 
etc.,  violations  of  which  are  frequently  classified  as  criminal. 
Many  of  these  violations  of  the  law  are  committed  without  crim- 
inal intent,  but  owing  to  ignorance  or  carelessness.  By  making 
these  offenses  criminal  the  tendency  is  to  remove  the  stigma 
from  criminality,  and  thus  to  diminish  greatly  the  effectiveness 
of  the  criminal  law.  It  would  doubtless  be  preferable  not  to 
stigmatize  them  as  criminal.  It  would  perhaps  be  advisable  to 
create  for  these  unintentional  violations  a  new  category  of 
offenses  which  are  harmful  to  society,  but  which  are  committed 
without  any  criminal  intent.  These  offenses  would  be  inter- 
mediate between  violations  of  the  civil  law  and  violations  of  the 
criminal  law. 


CHAPTER  XVII 
THE  FUNCTIONS  OF  CRIMINAL  PROCEDURE 

The  procedure  of  accusation  —  The  procedure  of  investigation  —  English 
and  French  criminal  procedure  —  Combination  of  the  procedures  of 
accusation  and  investigation:  public  prosecution  —  The  reform  of 
criminal  procedure. 

After  criminal  law  came  into  existence  it  became  necessary 
to  devize  a  mechanism  for  applying  it.  To  attain  this  end  two 
things  must  be  accomplished,  namely,  to  determine  that  a 
crime  has  been  committed,  and  to  ascertain  who  committed  it. 
Criminal  procedure  has  evolved  for  the  purpose  of  performing 
these  functions,  and  operates  through  courts  and  judges. 

The  functions  of  criminal  procedure  are  of  the  utmost  im- 
portance to  society.  On  the  one  hand,  it  is  essential  that  every 
criminal  be  apprehended  and  his  criminality  proved.  On  the 
other  hand,  it  is  imperative  that  no  innocent  person  shall  be 
convicted  and  punished.  The  ideal  procedure,  therefore,  would 
be  too  firm  to  permit  the  escape  of  a  single  criminal,  and  yet 
sufl&ciently  flexible  to  prevent  the  prosecution  and  especially 
the  condemnation,  of  any  innocent  person.  But  an  ideal  pro- 
cedure is  impossible  for  the  following  reasons. 

In  the  first  place,  nothing  can  be  proved  absolutely,  strictly 
speaking,  while  in  many  cases  the  available  evidence  cannot 
make  a  decision  more  than  probable.  In  the  second  place,  the 
endeavor  to  ascertain  the  truth  is  greatly  complicated  by  the 
opposition  of  social  and  individual  interests  in  procedure.  It  is 
always  difficult  to  preserve  the  balance  between  the  rights  of 
the  individual  and  of  society,  but  perhaps  nowhere  more  so  than 
in  criminal  procedure.  On  the  one  hand,  the  protection  of 
society  against  crime  requires  strict  measures  of  investigation 
and  prosecution,  which  may  sometimes  result  in  the  prosecution 
of  an  innocent  person.  On  the  other  hand,  individual  liberty 
must  be  defended  and  conserved.  The  condemnation  of  an 
innocent  person  is  a  great  shock  to  public  sentiment,  not  only 


THE  FUNCTIONS   OF   CRIMINAL   PROCEDURE  273 

as  a  violation  of  justice,  but  also  because  each  person  imagines 
himself  or  herself  in  the  place  of  the  victim,  and  realizes  in  what 
jeopardy  every  one  is  placed  when  such  judicial  errors  are  pos- 
sible. However,  in  spite  of  these  difficulties,  it  is  essential  to 
strive  for  a  system  of  criminal  procedure  in  which  the  possibility 
of  error  will  be  reduced  to  a  minimum. 

Prototypes  of  courts  and  judges  and  of  systems  of  procedure 
existed  before  the  evolution  of  written  law.  Among  primitive 
peoples  are  found  methods  of  hearing  accusations  and  judging 
their  accuracy,  and  of  imposing  penalties.^  These  methods  are 
handed  down  from  generation  to  generation  by  means  of  tradi- 
tion. Sometimes  the  whole  clan  or  tribe  acts  as  the  court  of 
judgment.  Sometimes  the  elders  in  the  group  or  other  desig- 
nated persons  serve  as  a  court.  Inasmuch  as  many  offenses 
were  contrary  to  religious  beliefs,  the  priests  and  other  author- 
ized representatives  of  religion  acquired  more  or  less  judicial 
power.  As  the  chieftainship  grew  in  authority,  the  chief  ac- 
quired judicial  power;  and  as  the  kingship  evolved,  it  was  the 
tendency  for  the  judicial  function  to  become  centered  in  the  king. 

But  with  the  evolution  of  written  law  the  methods  of  pro- 
cedure were '  recorded,  and  thus  obtained  a  greater  degree  of 
certainty  and  fixity.  The  two  principal  types  of  criminal  pro- 
cedure which  have  evolved  are  the  procedure  of  accusation  and 
the  procedure  of  investigation  or  inquisitorial  procedure.  The 
systems  of  criminal  procedure  of  all  nations  of  European  civiliza- 
tion are  based  upon  these  two  fundamental  types. 

The  Procedure  of  Accusation 

The  procedure  of  accusation  probably  is  the  older  of  these  two 
types  of  procedure.  This  type  developed  out  of  private  retalia- 
tion inflicted  by  one  individual  upon  another  for  a  wrong  suffered. 
Such  acts  of  vengeance  created  a  state  of  private  war  between 
individuals.  It  is  not  possible  to  describe  in  detail  the  evolution 
from  this  state  to  a  form  of  legal  procedure.  Suffice  it  to  say 
that  the  legal  duel  was  established  in  which  individuals  fought 

^  See  L.  T.  Hobhouse,  G.  C.  Wheeler  and  M.  Ginsberg,  The  Material 
Culture  and  Social  Institutions  of  the  Simpler  Peoples,  London,  1915,  Chap.  II, 
entitled  "Government  and  Justice";  G.  C.  Wheeler,  The  Tribe,  and  Inter- 
tribal Relations  in  Australia,  London,  19 10,  Chap.  VIII,  entitled  "The 
Regulated  Settlement  of  Differences,  or  Justice." 


274  CRIMINOLOGY 

out  their  differences  and  redressed  their  grievances  in  accord- 
ance with  prescribed  rules.  But  as  social  and  political  condi- 
tions became  more  stable,  it  was  no  longer  possible  to  tolerate 
a  state  of  private  war.  Consequently,  the  procedure  of  accusa- 
tion was  developed  to  satisfy  private  grievances  by  peaceful  legal 
means.  Long  after  most  individuals  were  forced  to  settle  their 
grievances  by  means  of  this  procedure,  the  upper  classes  still 
retained  the  privilege  of  the  duel,  as  among  the  feudal  lords  who 
settled  their  differences  by  means  of  private  war  down  to  the 
end  of  the  Middle  Ages,  and  almost  until  the  present  time  the 
duel  has  not  been  regarded  as  illegal  in  certain  cases. 

The  fundamental  theory  of  the  procedure  of  accusation  is 
that  the  trial  is  a  combat  between  two  individuals,  similar  to 
its  predecessor  the  duel.  It  is  a  legal  means  of  securing  ven- 
geance. This  is  manifested  by  the  early  forms  of  punishment, 
such  as  composition,  wergild,  etc.  It  is  not  until  later  that  pun- 
ishment is  inflicted  for  the  injury  done  to  society.  The  only 
interest  of  society  at  first  is  that  the  dispute  shall  be  decided 
and  reparation  gained  by  peaceful  means.  Therefore,  the  king 
or  a  judge  as  the  representative  of  society  acts  as  an  arbiter 
between  the  opposing  parties.  The  accusation  must  be  made 
by  a  private  individual,  the  injured  person  or  "those  of  his 
lineage."  The  judge  cannot  start  a  criminal  proceeding.  It  is 
a  principle  of  this  type  of  procedure  that  there  can  be  no  trial 
without  an  accuser.  The  examination  into  the  facts  of  the  case 
in  this  type  of  procedure  is  public,  oral,  and  contradictory  in 
order  to  give  each  party  an  equal  opportunity  to  state  its  case. 

This  is  the  procedure  of  accusation  in  its  original  form.  As 
the  social  iniportance  of  criminal  procedure  increased,  the  pro- 
cedure of  accusation  began  to  vary  from  its  original  form,  which 
was  designed  for  the  settlement  of  private  disputes.  When 
crimes  came  to  be  regarded  as  injurious  to  society,  as  well  as  to 
the  individuals  against  whom  they  were  committed,  it  became 
essential  that  all  criminals  should  be  prosecuted.  But  there  was 
danger  of  impunity  to  many  criminals  under  the  procedure  of 
accusation  on  account  of  apathy  on  the  part  of  the  accusers. 
In  order  to  start  a  legal  process  against  a  criminal,  it  was  nec- 
essary that  the  injured  party  should  make  an  accusation.  If 
this  accusation  was  not  made,  the  criminal  went  unpunished. 

To  remedy  this  failure  to  prosecute,  the  popular  accusation 


THE   FUNCTIONS   OF   CRIMINAL  PROCEDURE  275 

was  introduced,  by  means  of  which  any  person  could  bring 
an  accusation  for  crime  comjnitted,  even  if  he  was  not  the  in- 
jured party.  Laws  have  also  been  enacted  prohibiting  the  com- 
pounding of  crime,  which  is  a  transaction  for  the  suppression  of 
criminal  pursuit  and  the  cessation  of  a  process  already  com- 
menced, except  with  the  consent  of  the  court.  However,  even 
these  measures  have  not  proved  sufficient,  and  existing  systems 
based  upon  the  procedure  of  accusation  have  been  forced  to 
adopt  public  prosecution. 

Another  danger  of  the  procedure  of  accusation  is  that  it  will 
be  used  for  the  extortion  of  blackmail,  or  for  the  satisfaction 
of  personal  hatred  where  no  grievance  exists,  or  for  the  satisfac- 
tion of  fancied  grievances.  Measures  have  been  taken  against 
this  danger,  such  as  the  severe  punishment  of  blackmail,  pen- 
alties for  malicious  accusation  and  prosecution,  a  remedy  at 
civil  law  by  means  of  a  suit  for  damages  in  case  of  prosecution 
upon  no  reasonable  basis  of  facts.  But  even  with  these  meas- 
ures, supervision  over  the  prosecution  is  needed,  and  has  been 
introduced  into  most  systems  of  criminal  procedure. 

The  method  of  examination  in  the  procedure  of  accusation 
has  its  defects.  Its  pubhcity  frequently  enables  the  accused 
to  destroy  incriminating  evidence.  The  privilege  of  the  accused 
not  to  testify  if  he  so  chooses  deprives  the  court  of  a  valuable 
source  of  information.  The  silence  of  the  accused  usually  de- 
prives society  of  a  powerful  weapon  against  crime,  though 
sometimes  it  does  injury  to  the  accused  himself,  especially  when 
he  is  innocent. 

The  Procedure  of  Investigation 

The  procedure  of  investigation,  or  inquisitorial  procedure, 
seems  to  have  originated  in  the  Roman  law,  into  which  it  was 
introduced  during  the  latter  part  of  its  history.  Later  it  was 
adopted  by  the  Catholic  Church  and  applied  by  the  canonical 
law.  In  the  Middle  Ages  the  Church  had  a  great  deal  of  power, 
and  many  crimes  were  prosecuted  in  the  ecclesiastical  courts. 
Frequently  crimes  were  prosecuted  by  the  bishops,  who  acted 
as  judges  even  when  no  complaint  had  been  brought  before 
them.  This  increased  greatly  the  power  of  the  Church,  so  that 
in  course  of  time  it  became  the  regular  procedure.  Under  the 
Inquisition  it  was  very  useful  for  prosecuting  heretics  and  fore- 


276  CRIMINOLOGY 

ing  confessions  from  them.  After  being  elaborated  and  greatly 
extended  in  the  ecclesiastical  courts  it  began  to  be  adopted  by 
the  secular  law.  In  France  it  was  introduced  into  the  penal 
system  by  means  of  royal  ordinances,  such  as  those  of  149S, 
1539,  and  a  famous  one  on  criminal  procedure  in  1670.  In  the 
Constitulio  Criminalis  Carolina,  a  criminal  code  promulgated 
in  Germany  under  Charles  V  in  1532,  it  was  recognized  as  the 
usual  procedure.  In  this  fashion  it  replaced  in  large  part  the 
procedure  of  accusation  on  the  European  Continent,  and  re- 
mained in  force  until  the  French  Revolution,  when  it  under- 
went great  changes. 

The  procedure  of  investigation,  like  that  of  accusation,  may 
never  have  existed  in  its  pure  form,  but  we  can  readily  discern 
its  principal  features  as  a  form  of  procedure.  The  underlying 
theory  of  this  type  of  procedure  is  that  the  pursuit  and  punish- 
ment of  criminals  is  of  the  utmost  importance  for  society.  Con- 
sequently, society  has  the  right  to  commence  a  criminal  process. 
This  it  may  do,  not  necessarily  by  accusing  some  one  of  crime, 
but  by  making  an  investigation  to  determine  whether  a  crime 
has  been  committed,  or  whether  a  certain  person  has  committed 
a  crime. 

Therefore  the  judge,  acting  not  as  an  arbiter  between  two 
parties,  as  in  the  pure  form  of  the  procedure  of  accusation, 
but  as  the  representative  of  society,  commences  such  an  investi- 
gation, and,  if  he  finds  incriminating  evidence,  prosecutes  the 
suspected  person.  His  decision  need  not  be  based  only  on  the 
evidence  brought  before  him  by  the  accuser,  if  there  be  one, 
and  by  the  prisoner,  but  the  judge  himself  may  collect  evidence. 
Theoretically,  his  position  is  as  impartial  as  in  the  procedure 
of  accusation.  But,  as  frequently  there  is  no  accuser,  and  as 
he  has  to  conduct  the  prosecution,  the  tendency  is  for  the  judge 
in  the  procedure  of  investigation  to  become  prejudiced  against 
the  prisoner.  This  was  one  of  the  reasons  why  this  form  of 
procedure  in  the  hands  of  the  Catholic  Church  was  a  powerful 
weapon  against  its  opponents,  and  an  evil  force  for  injustice 
and  persecution,  especially  as  used  in  the  Inquisition. 

The  examination  in  the  procedure  of  investigation  is  very 
different  from  the  examination  in  the  procedure  of  accusation. 
It  is  secret,  written,  and  uncontradictory.  The  criminal  process 
is  no  longer  a  contest  between  two  personal  adversaries.    It  is 


THE  FUNCTIONS  OF  CRIMINAL  PROCEDURE  277 

the  trial  of  the  prisoner  before  a  judge  who  is  supposed  to  be 
impartial,  but  who  represents  society,  which  is  the  great  op- 
ponent of  the  prisoner  if  he  is  found  to  be  guilty.  The  process 
is  not  contradictory,  because  no  opposing  parties  appear  in  the 
course  of  the  trial.  It  is  secret  because  it  is  in  theory  only  an 
inquiry  conducted  by  the  representative  of  society,  and  this 
inquiry  can  be  all  the  more  searching  if  made  in  secret.  It  is 
written  also  because  it  is  an  inquiry,  the  only  purpose  being  to 
gather  as  much  evidence  as  possible,  and  to  have  it  on  record  as 
a  basis  for  judgment. 

The  procedure  of  investigation  is  a  powerful  instrument  in 
the  hands  of  the  central  government.  The  government  is,  of 
course,  expected  to  use  this  power  solely  in  the  service  of  justice. 
But  the  danger  always  exists  that  it  will  be  used  by  those  in 
authority  as  a  poHtical  weapon  to  further  their  own  interests, 
and  thus  misused  as  it  was  by  the  Church.  Furthermore,  it  is 
dangerous  to  put  the  power  of  prosecution  and  that  of  judgment 
in  the  same  hands.  Strictly  speaking,  there  is  no  such  thing 
as  prosecution  in  the  procedure  of  investigation,  tlie  trial  being 
only  an  inquiry  into  the  facts.  But  inasmuch  as  social  interests 
are  at  stake,  and  as  society  is,  in  a  sense,  the  opponent  of  the 
prisoner,  the  judge,  as  the  representative  of  society,  becomes 
the  prosecutor.  This  tends  to  bias  him  against  the  prisoner, 
and  thus  unfits  him  for  judging  impartially. 

The  method  of  securing  and  presenting  the  evidence  in  the 
procedure  of  investigation  has  certain  faults.  The  power  of 
the  judge  in  accepting  and  rejecting  evidence  is  too  arbitrary. 
If  he  begins  his  examination  with  a  prejudice  in  favor  of  one 
side,  he  is  likely  to  find  the  evidence  in  favor  of  that  side,  and 
to  ignore  the  other.  In  fact,  judicial  functions  are  hardly  com- 
patible with  an  active  investigation.  In  order  that  all  the  evi- 
dence in  favor  of  a  side  be  brought  to  light,  it  should  be  gathered 
and  presented  by  some  one  interested  in  that  side.  It  is  hardly 
possible  for  one  person  to  present  all  the  evidence  on  both  sides. 
While  gathering  the  evidence  he  is  likely  to  become  biased  in 
favor  of  one  side  or  the  other.  In  order  to  arrive  at  an  impartial 
decision,  the  judge  should  come  with  a  fresh  and  unbiased  mind 
to  a  consideration  of  the  evidence  after  it  has  been  carefully 
prepared  by  others,  and  is  then  presented  to  him  by  the  repre- 
sentatives of  both  sides. 


278  CRIMINOLOGY 

The  secrecy  and  uncontradictory  nature  of  the  procedure  of 
investigation  tend  to  limit  the  power  of  the  prisoner  to  defend 
himself.  His  inability  to  contradict  prevents  him  from  replying 
directly  to  and  explaining  evidence  offered  against  him  while 
its  impression  upon  the  mind  of  the  judge  is  still  fresh.  Still 
more  is  he  hampered  by  the  secrecy  of  the  examination,  which 
frequently  prevents  him  from  knowing  what  evidence  has  been 
found,  so  that  he  fails  to  reply  to  it  when  he  is  given  the  oppor- 
tunity to  testify.  Consequently,  while  the  principal  object  of 
the  procedure  of  investigation  is  to  protect  society,  it  tends  in 
practise  to  discriminate  against  the  prisoner,  and  thus  violates 
the  rights  of  the  individual. 

English  and  French  Criminal  Procedure 

The  principal  example  of  the  procedure  of  accusation  is  the 
English  system  of  procedure,  though  it  has  varied  greatly  from 
the  pure  form  of  this  type  of  procedure.  In  theory,  at  least,  the 
prosecution  is  private,  but  it  is  now  done  in  the  name  of  the 
king,  which  is  a  recognition  of  the  interests  of  society  in  the 
prosecution,  and  in  practise  there  is  a  great  deal  of  public 
prosecution.  The  trial  is  conducted  by  the  two  opposing  parties, 
and  is  public,  oral,  and  contradictory.  The  judge  acts  as  an 
arbiter,  intervening  only  when  questions  arise  as  to  how  the 
process  is  to  be  conducted.  From  the  decisions  of  judges  re- 
garding evidence  has  grown  the  English  law  of  evidence,  which 
is  the  largest  body  of  rules  regarding  evidence  in  any  system  of 
law.  The  decision  regarding  guilt  is  made  by  a  jury,  which  is  a 
judicial  institution  developed  by  the  procedure  of  accusation. 
Its  underlying  theory  is  that  a  man  is  to  be  judged  by  his  peers, 
and  it  is  a  safeguard  against  the  judges  who,  as  representatives 
of  the  government,  may  wrongly  prosecute  and  condemn  in  the 
name  of  society. 

The  leading  example  of  the  procedure  of  investigation  is  the 
French  procedure.  Since  the  French  Revolution  the  French 
procedure  has  more  or  less  influenced  every  Continental  system 
of  procedure.  It  goes  without  saying  that  it  varies  considerably 
from  the  pure  form  of  this  tj^e  of  procedure.  In  France  the 
preliminary  examination  of  the  accused  is  made  by  a  magistrate 
called  the  juge  d' instruction.  This  examination  is  almost  en- 
tirely secret,  only  the  counsel  for  the  prisoner  being  present. 


THE   FUNCTIONS   OF   CRIMINAL   PROCEDURE  279 

It  is  absolutely  uncontradictory  and  a  written  record  is  made. 
The  functions  of  the  juge  dHnstruction  constitute  a  survival  of 
the  Inquisition,  and  his  position  is  similar  to  that  of  the  Grand 
Inquisitor.  The  record  of  this  examination  in  the  form  of  deposi- 
tions of  witnesses  is  sent  to  the  judge  who  is  to  preside  at  the 
trial.  As  a  result  of  reading  these  depositions,  this  judge  is  liable 
to  acquire  a  hostile  attitude  towards  the  prisoner. 

The  presentation  of  evidence  is  oral  and  public.  But  it  is 
almost  entirely  uncontradictory,  since  the  questioning  of  wit- 
nesses is  done  by  the  judge  and  there  is  no  cross-examination. 
The  rules  of  evidence  are  few  and  elementary,  so  that  the  judge 
is  almost  unrestricted  in  examining  witnesses.  The  prosecuting 
is  done  by  a  body  of  public  ofl&cials  called  the  ministere  publique. 
The  principal  contradictory  feature  in  the  trial  is  furnishe'd  by 
the  speeches  of  the  procureur  de  la  Republique,  or  public  pros- 
ecutor, and  the  counsel  for  the  defense,  after  the  examination  of 
witnesses.  After  the  French  Revolution  the  jury  was  introduced 
into  the  procedure,  and  was  a  modification  tending  towards  the 
procedure  of  accusation. 

Combination  of  the  Procedures  of  Accusation  and  In- 
vestigation 

The  procedure  of  accusation  is  based  on  the  primitive  theory 
of  personal  vengeance.  The  underlying  theory  of  the  procedure 
of  investigation  is  more  advanced,  since  it  displays  a  higher 
conception  of  the  function  of  penal  procedure.  But  in  practise 
it  tends  to  violate  individual  rights  in  certain  respects.  To 
correct  this  fault  in  the  procedure  of  investigation  it  is  necessary 
to  look  to  the  procedure  of  accusation,  which  furnishes  more 
safeguards  to  individual  rights.  The  best  procedure,  therefore, 
must  adopt  the  theoretical  basis  of  the  procedure  of  investiga- 
tion, namely,  the  protection  of  society  as  the  purpose  of  penal 
treatment,  and  those  features  of  both  types  of  procedure  which 
will  put  this  theory  into  practise.  This  has  been  the  actual 
tendency  in  existing  systems  of  procedure.  The  primitive  theory 
of  vengeance  as  a  basis  for  penal  treatment  has  been  dying  out, 
and  is  being  replaced  by  that  of  the  protection  of  society, 
while  the  systems  based  upon  the  two  types  of  procedure  have 
been  rapidly  approaching  each  other  in  practise. 


28o  CRIMINOLOGY 

The  procedure  of  accusation  leaves  the  prosecution  of  crim- 
inals to  the  injured  parties.  But  this  results  in  impunity  for 
many  criminals.  Indifference,  threats,  bribes,  and  other  con- 
siderations keep  people  from  accusing  and  prosecuting.  A  first 
step  towards  remedying  this  failure  of  criminal  justice  was  the 
popular  accusation  by  means  of  which  every  citizen  could  accuse 
any  other  person  of  a  crime.  Montesquieu  said  that  the  popular 
accusation  is  suited  to  republics  where  patriotism  is  strong,  but 
not  to  monarchies  where  this  sentiment  is  weak.^  But  even  in 
republics  patriotism  is  not  sufficiently  strong  to  induce  citizens 
to  take  the  time  and  trouble  to  accuse,  and  to  take  the  risk  of 
making  a  false  accusation.  Therefore  a  public  agency  for  the 
pursuit  and  prosecution  of  criminals  is  absolutely  necessary. 

In  'the  procedure  of  investigation  there  is  no  prosecution, 
strictly  speaking.  The  judge  merely  conducts  an  inquiry.  But 
in  practise  it  is  his  tendency,  as  the  representative  of  social 
interests,  to  regard  the  prisoner  as  guilty,  and  therefore  to 
prosecute.  In  order  to  remedy  this  evil,  official  or  public  pros- 
ecution was  introduced  into  this  form  of  procedure.  Public 
prosecution  is  a  combination  of  the  two  forms  of  procedure.  It 
is  prosecution  by  a  person  other  than  the  judge,  as  in  the  pro- 
cedure of  accusation,  but  it  is  prosecution  by  a  representative  of 
society,  and  therefore  harmonizes  with  the  theory  of  the  pro- 
cedure of  investigation.  So  that  in  the  development  of  the 
method  of  prosecution  the  tendency  has  been  towards  the  theory 
of  the  procedure  of  investigation,  modified  in  practise,  however, 
by  the  procedure  of  accusation. 

Public  prosecution  brought  with  it  the  contradictory  element, 
for  it  necessitated  defense  for  the  accused  person.  The  con- 
tradictory debate  aids  greatly  in  arriving  at  a  final  decision. 
As  a  general  rule,  the  judge  should  have  nothing  to  do  with  the 
gathering  and  presentation  of  evidence.  The  evidence  should  be 
gathered  by  others,  and  then  placed  before  him  in  the  manner 
best  calculated  to  reveal  its  significance.  For  this  reason,  the 
European  Continental  method,  in  which  the  judge  questions  the 
witnesses  freely,  thus  conducting  the  presentation  of  evidence  for 
both  sides,  is  objectionable,  even  though  it  may  somewhat 
hasten  the  trial. 

It  is  impossible  for  a  man  to  keep  in  mind  all  of  the 
'  Quoted  by  C.  Beccaria,  Crimes  and  Punishments,  Chap.  XV. 


THE  FUNCTIONS  OF  CRIMINAL  PROCEDURE  281 

considerations  on  both  sides,  and  to  bring  out  all  of  the  signifi- 
cant points  in  the  evidence.  In  order  to  accomplish  this 
end,  the  examination  of  witnesses  should  be  conducted  by 
representatives  of  both  sides,  each  bearing  in  mind  the  evidence 
favorable  to  his  own  side,  and  bringing  it  out  in  the  presentation 
of  the  testimony.  Each  of  these  representatives  would  also  be 
watching  for  contradictions  and  discrepancies  in  the  evidence 
offered  by  the  other  side,  and  could  expose  them  much  more 
readily  than  the  judge,  who  would  be  endeavoring  to  keep  in 
mind  at  the  same  time  the  important  points  on  both  sides.  If 
it  were  possible  for  one  person  to  detect  and  expose  these  errors 
as  readily  as  two  persons,  the  procedure  of  investigation  would 
be  the  best  fitted  for  a  criminal  trial.  But  inasmuch  as  this  is  a 
mental  impossibility,  the  system  of  examination  and  cross- 
examination  and  of  the  contradictory  debate  which  has  been 
developed  by  the  procedure  of  accusation  is  the  best  fitted  for 
the  presentation  of  evidence,  and  for  arriving  at  a  final  decision. 

The  Reform  of  Criminal  Procedure 

The  following  problems  must  be  studied  with  respect  to 
criminal  procedure.  In  the  first  place,  the  existing  system  has 
many  defects  which  must  be  remedied.  In  the  second  place,  a 
somewhat  new  system  must  be  developed  which  can  utilize  the 
data  of  the  modern  science  of  criminology. 

The  existing  procedure  must  be  reformed  because  many  trials 
are  prolonged  far  beyond  a  reasonable  length,  which  is  greatly 
to  the  inconvenience  of  the  persons  involved,  and  causes  much 
expense  to  the  state.  There  is  reason  to  believe  that  some 
guilty  persons  escape  punishment  owing  to  unnecessary  tech- 
nicalities in  the  procedure.  Such  a  condition  of  affairs  is  sure  to 
stimulate  an  increase  of  crime,  and  it  has  undoubtedly  done  so 
to  a  certain  extent  in  this  country. 

A  simplification  of  the  existing  procedure  is  needed.  Its 
present  complexity  is  due  largely  to  the  effort  to  protect  the 
accused,  which  is  justifiable  up  to  a  certain  point,  because  it  is  of 
the  utmost  importance  that  no  innocent  person  shall  be  con- 
victed. But  when  carried  beyond  this  point  it  becomes  a  shield 
and  cloak  for  guilty  persons,  under  which  cloak  some  of  the 
guilty  will  escape  punishment.    This  has  happened  in  numerous 


282  CRIMINOLOGY 

cases  where  a  conviction  has  been  reversed  because  of  the 
omission  of  a  word  in  an  indictment  or  a  similar  unimportant 
error.  These  miscarriages  of  justice  have  caused  a  lack  of 
confidence  in  the  courts,  have  increased  the  amount  of  crime, 
and  have  encouraged  the  rise  of  lynch  law.  In  order  to  avoid 
such  miscarriages  of  justice  the  forms  for  the  indictment  and  the 
information  should  be  made  as  brief  and  simple  as  possible,  so 
as  to  reduce  the  possibility  of  technical  errors  to  a  minimum. 
This  has  already  been  accomplished  in  England,  and  has  in- 
creased materially  the  effectiveness  of  the  criminal  law  in  that 
country. 

Furthermore,  the  prosecution  of  crime  would  be  much  simpler 
if  most  of  the  felonious  offenses  were  prosecuted  by  means  of  an 
information  prepared  by  a  prosecuting  officer  instead  of  an  in- 
dictment. Thus  would  be  swept  away  the  cumbersome  method 
of  indicting  by  grand  jury.  In  fact,  this  reform  has  already  been 
effected  in  several  states,  and  should  be  adopted  by  all.  It  may 
appear  as  if  the  abolition  of  the  grand  jury  removes  an  important 
protection  for  the  innocent.  But  sufficient  protection  will  re- 
main. In  the  first  place,  in  every  case  there  should  be  a  pre- 
liminary examination  by  an  examining  magistrate.  In  the  sec- 
ond place,  if  the  case  is  very  weak,  the  prosecuting  officer  will  be 
almost  certain  to  dismiss  rather  than  take  the  chances  of  defeat 
in  a  trial. 

The  grand  jury  has  been  regarded  with  much  veneration 
in  the  past.  But  the  examinations  made  by  it  are  so  brief 
and  superficial  that  it  is  doubtful  if  it  has  ever  been  efficient 
in  performing  the  function  of  selecting  the  cases  to  be  tried. 
This  work  can  be  achieved  quite  as  efficiently  and  much  more 
promptly  by  examining  magistrates  and  prosecuting  officers. 
The  abolition  of  the  grand  jury  would  hasten  procedure,  because 
the  necessity  of  waiting  for  an  examination  by  the  grand  jury 
has  frequently  resulted  in  long  delays  in  bringing  cases  to  trial. 

In  the  Enghsh  common  law  the  accused  was  not  required  to 
testify.  This  feature  of  the  law  was  supposed  to  be  for  the 
benefit  of  the  accused,  because  if  he  did  not  testify  he  could  not 
incriminate  himself.  Recently  the  accused  has  testified  if  he 
chose  to  do  so,  but  has  had  the  right  to  refuse,  and  the  law  has 
provided  that  such  refusal  should  not  have  any  weight  with  the 
jury  and  the  judge.    It  is  evident  that  the  testimony  of  the  ac- 


THE   FUNCTIONS   OF   CRIMINAL   PROCEDURE  283 

cused  has  much  value  in  every  case,  and  in  the  interests  of  jus- 
tice it  should  be  introduced.  So  that  the  accused  should  be 
required  to  testify,  or,  at  any  rate,  if  permitted  to  refuse,  such 
refusal  should  have  weight  with  the  jury  and  the  judge.  It  is 
doubtful  if  this  change  would  remove  any  justifiable  protection 
from  the  accused,  for  if  he  is  innocent  his  testimony  should  help 
rather  than  injure  his  cause,  while  if  he  is  guilty  there  is  no  reason 
why  he  should  not  incriminate  himself. 

In  the  common  law  there  developed  for  the  protection  of  the 
accused  the  presumption  of  innocence.  On  the  European 
Continent  there  has  never  been  any  presumption  either  of 
innocence  or  of  guilt.  The  common  law  presumption  of  inno- 
cence has  strengthened  too  much  the  position  of  the  accused,  and 
has  made  it  too  dif&cult  to  convict  the  guilty.  This  presumption 
should  be  abolished,  at  least  in  so  far  as  it  influences  procedure, 
from  the  theory  of  the  law. 

The  right  of  appeal  is  greatly  abused  in  this  country.  A  large 
percentage  of  criminal  as  well  as  of  civil  cases  are  appealed, 
and  many  of  them  are  reversed  upon  purely  technical  grounds 
which  do  not  affect  the  merits  of  the  case.  Many  of  these  ap- 
peals are  on  errors  in  rulings  on  rules  of  order  which  should  not 
ordinarily  be  reviewable,  because  they  do  not  usually  affect 
the  substantial  points  at  issue.  But  in  most  jurisdictions  the 
rules  of  procedure,  based  largely  upon  previous  decisions,  are 
of  such  a  nature  that  any  of  these  rulings  may  be  reviewed, 
and  in  many  cases  they  furnish  a  basis  for  a  reversal.  Already 
in  a  few  jurisdictions  the  rules  of  procedure  have  been  so  changed, 
or  appellate  courts  have  made  such  decisions,  that  this  is  no 
longer  possible,  and  the  same  should  become  true  over  the  whole 
country.  In  England  there  was  no  criminal  court  of  appeal 
until  1907,  and  even  now  appeal  is  not  a  matter  of  right,  but 
can  be  made  only  when  the  trial  court  thinks  that  the  merits 
of  the  case  are  involved. 

These  criticisms  indicate  some  of  the  desirable  reforms  in  the 
existing  procedure.  But  these  reforms  will  not  develop  a  pro- 
cedure which  can  make  use  of  scientific  data.  These  facts  may 
be  applied  in  gathering  evidence,  testing  the  accuracy  of  testi- 
mony, measuring  the  penal  responsibility  of  the  accused,  etc. 
The  most  important  reforms  in  criminal  procedure  are  those 
which  will  make  possible  the  utilization  of  these  scientific  facts. 


284  CRIMINOLOGY      • 

After  a  conviction  has  resulted  from  a  trial  it  becomes  neces- 
sary to  decide  upon  the  penal  treatment  to  be  inflicted  upon  the 
criminal.  Under  the  old  system  of  fixed  penalties  this  was  an 
easy  thing  for  the  judge  to  do.  But  the  present  tendency  is 
towards  the  individualization  of  punishment,  that  is  to  say, 
towards  adjusting  the  penal  treatment  to  the  character  of  the 
criminal.  The  judges  should,  therefore,  be  well  acquainted  with 
the  nature  of  criminals.  This  requires  a  knowledge  of  the  differ- 
ent types  of  criminals  and  of  the  social  causes  of  crime  which 
can  be  acquired  only  by  means  of  special  study. 

Furthermore,  the  decision  of  the  judge  as  to  the  penal  treat- 
ment to  be  inflicted  would  in  many  cases  be  tentative.  For 
example,  if  an  indeterminate  sentence  was  imposed,  it  would 
have  to  be  decided  later  when  this  sentence  is  to  terminate. 
At  present  this  is  done  by  prison  officials.  But  it  would  probably 
be  desirable  that  the  judges  also  should  participate  in  these 
decisions,  thus  bringing  the  courts  and  the  penal  institutions 
into  cooperation  in  deciding  these  questions.  It  might  be  pos- 
sible to  establish  a  system  of  the  periodic  revision  of  sentences 
by  the  judges,  so  that  each  judge  could  revize  from  time  to  time 
the  sentence  of  each  person  sentenced  by  him,  so  as  to  decide 
when  the  sentence  should  be  terminated  or  whether  the  penal 
treatment  should  be  changed  in  its  character.  These  revisions 
of  sentences  would  be  made  upon  the  advice  and  with  the  co- 
operation of  the  prison  officials.  If  such  a  system  of  the  periodic 
revision  of  sentences  were  introduced,  the  function  of  criminal 
procedure  would  be  extended  through  the  judge  beyond  the 
time  of  the  conviction  and  original  sentence  to  the  end  of  the 
penal  treatment  of  the  criminal. 


CHAPTER  XVin 
THE  SCIENTIFIC  PRINCIPLES  OF  EVIDENCE 

Superstitious  methods  of  securing  proof:  the  wager;  the  ordeal;  torture  — 
The  English  law  of  evidence  —  Medical  jurisprudence:  the  evils  of 
contradictory  medical  testimony;  the  training  of  medico-legal  experts  — 
Expert  testimony  —  Abolition  of  the  coroner's  office  —  The  oath  — 
The  psychological  examination  of  witnesses:  the  causes  of  erroneous 
testimony;  the  psychological  expert  —  The  scientific  stage  of  evidence. 

The  object  of  a  criminal  trial  is  to  gather,  examine,  and 
weigh  evidence.  Consequently,  the  larger  part  of  the  mechan- 
ism of  criminal  procedure  is  devoted  to  this  work,  and  the  sub- 
ject of  central  importance  in  the  study  of  the  rules  of  procedure 
is  evidence. 

Superstitious  Methods  of  Securing  Proof 

Various  methods  of  securing  and  judging  evidence  have  been 
used  in  the  past.  For  example,  the  aid  of  spiritual  beings  has 
frequently  been  invoked  to  furnish  proof  of  guilt  or  innocence. 
Among  these  religious  methods  are  the  wager  of  law,  the  wager 
of  battle,  and  the  ordeal.  In  the  wager  of  law  the  proof  was 
secured  by  means  of  compurgation.  If  the  requisite  number  of 
compurgators  or  conjurators  swore  that  they  believed  the  ac- 
cused on  his  oath,  his  plea  of  innocence  was  accepted  as  true. 
So  that  the  wager  of  law  was  primarily  a  test  of  the  reputation 
of  the  accused  among  his  friends  and  neighbors.  But  the  solem- 
nity of  the  oath  in  which  the  deity  was  invoked  gave  to  this 
method  a  religious  character.  The  oath  is  still  used  as  a  test  of 
truthfulness. 

The  wager  of  battle  was  applied  by  means  of  a  judicial  battle 
sanctioned  and  witnessed  by  the  court.  This  battle  took  place 
between  the  accuser  and  the  accused,  or  between  their  repre- 
sentatives, and  God  was  supposed  to  give  the  victory  to  the 
side  which  was  in  the  right. 

The  ordeal  was  the  superstitious  and  religious  method  par 


286  CRIMINOLOGY 

excellence  of  securing  evidence  and  proof.  If  the  accused  was 
innocent,  the  deity  was  supposed  to  bring  him  successfully 
through  the  ordeal.  If  the  accused  was  guilty,  the  deity  was 
supposed  to  make  him  fail  in  the  ordeal.  Thus  in  the  ordeal  by 
water  if  the  accused  was  thrown  into  water  and  sank  and 
drowned,  in  some  places  it  was  regarded  as  proof  that  he  was 
guilty,  for  otherwise  God  would  have  saved  him.  If  he  floated 
and  survived,  it  was  positive  proof  that  the  divine  power  was 
saving  an  innocent  person.  On  the  other  hand,  in  other  places 
sinking  was  regarded  as  proof  of  innocence,  and  floating  as  proof 
of  guilt.  The  ordeal  was  inflicted  by  many  means,  such  as  boil- 
ing water,  red-hot  iron,  fire,  cold  water,  the  cross,  the  corsnaed 
(consecrated  bread  or  cheese),  the  eucharist,  poison,  the  bier- 
right  (the  body  of  the  victim  bleeds  on  the  approach  of  the  mur- 
derer), by  lot,  etc.^ 

The  use  of  torture  was  developed  to  a  high  degree  in  the  ec- 
clesiastical courts,  especially  under  the  Inquisition.  Then  it 
was,  unfortunately,  adopted  to  a  certain  extent  by  the  secular 
courts.  In  the  ecclesiastical  courts  torture  had  religious  sig- 
nificance. In  the  secular  courts  it  had  little  if  any  religious 
significance,  but  was  used  because  it  furnished  what  was  sup- 
posed to  be  absolute  proof  of  guilt  through  the  confession  of  the 
accused.  Torture  has  been  abolished  by  law  in  all  civilized 
countries,  but  it  is  still  used  illegally  sometimes,  as  in  the  "  third 
degree"  methods  of  the  police. 

The  English  Law  of  Evidence 

The  law  of  evidence  was  developed  more  fully  in  the  English 
procedure  than  in  other  systems  of  procedure.  This  was  due  to 
the  fact  that  the  English  jury  was  originally  a  body  of  witnesses 
who  gradually  became  judges  of  fact.  Inasmuch  as  jurors  are 
comparatively  ignorant  of  law  and  procedure,  and  are  inex- 
perienced in  hearing  and  judging  evidence,  the  judges  found  it 
necessary  to  regulate  the  kinds  of  evidence  to  be  presented  before 
the  jury,  and  also  to  instruct  the  jurors  to  a  certain  extent  as  to 
the  manner  in  which  they  were  to  judge  this  evidence.    In  other 

^  For  descriptions  of  all  of  these  religious  and  superstitious  methods  of 
securing  evidence  and  proof,  see,  H.  C.  Lea,  Superstition  and  Force,  Essays 
on  the  wager  of  law,  the  wager  of  battle,  the  ordeal,  torture,  3d  ed.,  Philadelphia, 


THE   SCIENTIFIC  PRINCIPLES   OF  EVIDENCE  287 

words,  it  was  necessary  for  the  judges  to  protect  the  jury  as 
much  as  possible  against  the  mistakes  due  to  its  ignorance  and 
inexperience. 

In  this  fashion  there  evolved  a  body  of  more  or  less  uniform 
rules  of  evidence.  As  the  independence  of  the  judges  increased, 
these  rules  became  more  and  more  authoritative,  until  they  were 
as  binding  as  the  common  or  statute  law.  There  is,  therefore, 
an  intimate  connection  between  the  English  law  of  evidence 
and  the  jury.  The  comparatively  undeveloped  state  of  the  law 
of  evidence  in  the  European  Continental  procedure  is  easily 
accounted  for  by  the  absence  of  the  jury  on  the  Continent  until 
after  the  French  Revolution. 

Evidence  is  classified  in  several  different  ways  in  the  English 
law  of  evidence.  Perhaps  the  most  important  classification  is 
that  of  direct  evidence,  and  indirect,  inferential,  or  circumstantial 
evidence.  Direct  evidence  is  derived  from  actual  observation, 
or  the  testimony  of  persons  who  have  a  knowledge  derived  from 
actual  observation.  Indirect  evidence  is  derived  by  inference 
from  other  facts  which  have  been  actually  observed,  or  are 
established  by  testimony.  Indirect  or  circumstantial  evidence 
is  admissible,  and  may  be  as  conclusive  as  direct  evidence,  but 
the  tendency  is  to  rate  circumstantial  evidence  as  having  less 
weight  than  direct  evidence. 

Evidence  is  also  classified  as  consisting  of  material  or  of  rel- 
evant facts.  A  material  fact  is  one  which,  when  proved,  decides 
one  of  the  questions  in  the  issue  to  be  considered  and  adjudicated 
by  the  jury.  A  relevant  fact  is  one  from  which,  when  proved,  a 
material  fact  may  be  legally  inferred.  Facts  which  are  neither 
material  nor  relevant  are  excluded  from  the  consideration  of  the 
jury,  and  evidence  concerning  them  is  inadmissible. 

Facts  judicially  noticed  are  certain  facts  which  are  presumed 
by  the  law  to  be  personally  known  to  the  judge  and  jury.  These 
are  classified  as  political,  legal  and  official  facts,  public  history, 
natural  history,  and  the  vernacular  language.  The  courts  take 
judicial  notice  of  these  facts,  and  regard  them  as  established 
without  further  proof. 

Evidence  is  classified  with  respect  to  its  form  as  written  and 
oral.  Written  evidence  consists  of  public  and  judicial  records, 
deeds,  bonds,  etc.  It  is  admissible  whenever  the  fact  in  ques- 
tion is  the  existence. of  the  document  itself,  or  whenever  the 


288  CRIMINOLOGY 

contents  of  the  document  are  legally  sufficient  to  establish  a 
material  or  relevant  fact.  Oral  evidence  consists  of  the  viva 
voce  testimony  of  a  witness  who  has  taken  the  oath.  It  is  ad- 
missible only  when  the  witness  can  testify  from  personal  knowl- 
edge as  to  the  existence  or  non-existence  of  a  material  or  rel- 
evant fact,  or  when  he  is  called  to  give  expert  testimony. 

Evidence  with  respect  to  a  written  document  is  classified  as 
primary  and  secondary.  The  document  itself  is  primary  ev- 
idence of  its  existence  and  contents.  Copies  and  oral  evidence 
with  regard  to  it  are  secondary  evidence,  and  secondary  ev- 
idence is  inadmissible  whenever  primary  evidence  can  be  pro- 
duced. 

A  witness  is  not  allowed  to  testify  to  statements  made  to  him 
or  in  his  presence  by  other  persons.  There  are  a  few  exceptions 
to  this  rule  which  there  is  not  the  space  to  state  here.  The 
exclusion  of  hearsay  evidence  is  a  distinctive  feature  of  the 
Enghsh  law  of  evidence. 

No  evidence  against  the  character  of  the  accused  can  be 
given,  except  in  reply  to  favorable  evidence  as  to  his  character 
which  has  already  been  introduced. 

The  voluntary  confession  of  the  accused,  when  made  without 
fear  or  hope  of  favor,  is  admissible  as  evidence  against  him. 

Any  person  who  understands  and  recognizes  the  obligations  of 
an  oath  is  a  competent  witness,  unless  disqualified  by  circum- 
stances specified  by  law.  In  the  past  those  who  had  been  con- 
victed of  certain  infamous  crimes,  and  those  who  had  an  interest 
in  the  case  were  disqualified,  but  at  the  present  time  these  cir- 
cumstances are  regarded  as  affecting  the  credibility  rather  than 
the  competency  of  a  witness. 

The  admissibility  of  evidence  is  to  be  decided  by  the  judge 
according  to  the  law  of  evidence,  or,  when  the  law  does  not 
specify,  according  to  his  own  discretion. 

The  sufficiency  and  weight  of  evidence  are  usually  decided  by 
the  jury.  From  certain  classes  of  facts,  however,  the  law  con- 
clusively infers  the  existence  or  non-existence  of  other  facts, 
and  the  jury  is  therefore  compelled  to  accept  this  inference  with 
respect  to  the  latter  facts  whenever  the  former  facts  have  been 
proved.  From  certain  other  classes  of  facts  the  law  infers,  but 
not  conclusively,  the  existence  or  non-existence  of  other  facts, 
and  the  jury  is  compelled  to  accept  this  inference  with  respect 


THE   SCIENTIFIC  PRINCIPLES   OF   EVIDENCE  289 

to  the  latter  facts  only  when  the  former  facts  have  been  proved, 
and  when  the  inference,  which  the  law  usually  derives  therefrom, 
has  not  been  rebutted.  These  inferences  are  called  presumptions 
of  the  law. 

The  presumption  of  the  law  that  the  accused  is  innocent  until 
proved  to  be  guilty  has  a  good  deal  of  significance  for  the  English 
law  of  evidence.  It  results  in  the  principle  that  guilt  must  be 
proved  beyond  a  reasonable  doubt,  and  that  the  evidence  must 
be  of  such  a  nature  as  to  exclude  every  reasonable  hypothesis 
but  guilt.  Furthermore,  the  corpus  delicti  (the  body  of  the 
offense  or  the  essence  of  the  crime)  must  be  established  by  ev- 
idence other  than  the  extra-judicial  admissions  of  the  accused. 

Leading  questions,  suggesting  the  desired  answer  to  the  wit- 
ness, may  be  employed  only  in  the  cross-examination. 

The  burden  of  proof  rests  on  the  aflSrmative  side,  which  may 
be  the  prosecution  or  the  defense  according  to  the  nature  of  the 
issue. 

When  a  specific  intent  is  alleged  in  the  indictment,  it  must  be 
proved  as  laid. 

Formerly  the  accused  could  not  testify.  But  for  some  time 
past  it  has  been  permitted  in  American  procedure,  and  the 
English  "Criminal  Evidence  Act"  of  1898  made  it  possible  in 
English  courts.  If,  however,  the  accused  offers  his  testimony, 
the  opposing  side  has  the  privilege  of  asking  questions  regarding 
his  conduct  and  character  which  could  not  otherwise  be  asked. 

These  rules  of  evidence  are  characterized  by  a  certain  amount 
of  arbitrariness  and  rigidity  which  are  in  some  measure  inev- 
itable in  any  law  of  evidence.  The  presence  of  the  jury  has 
emphasized  these  traits  in  the  English  law  of  evidence.^    But 

^  A  well-known  writer  on  this  subject  has  characterized  the  English  law 
of  evidence  as  follows:  "The  characteristic  features  of  the  English  common 
law  system  of  judicial  evidence,  like  those  of  every  other  system,  are  essen- 
tially connected  with  the  constitution  of  the  tribunal  by  which  it  is  ad- 
ministered, and  may  be  stated  as  consisting  of  three  great  principles:  i.  The 
admissibility  of  evidence  is  matter  of  law,  but  the  weight  or  value  of  evi- 
dence is  matter  of  fact.  2.  Matters  of  law,  including  the  admissibility  of 
evidence,  are  proper  to  be  determined  by  a.  fixed,  matters  of  fact  by  a  casual, 
tribunal;  but  this  is  a  principle  which  found  little  favour  with  the  Court  of 
Chancery,  and  has  gradually  become  a  less  integral  part  of  the  whole  Eng- 
lish system.  3.  In  determining  the  admissibility  of  evidence,  the  produc- 
tion of  the  best  evidence  should  be  exacted."  (W.  M.  Best,  The  Principles 
of  the  Law  of  Evidence,  London,  1906,  loth  ed.,  p.  66.) 


290  CRIMINOLOGY 

inasmuch  as  each  criminal  case  and  each  individual  witness  is 
more  or  less  peculiar,  the  law  of  evidence  should  be  as  flexible 
as  possible.  In  order  to  attain  this  flexibility  it  must  be  based 
as  far  as  possible  upon  scientific  principles. 

Medical  Jurisprudence 

Scientific  methods  have  already  been  applied  to  a  certain 
extent  in  medical  jurisprudence  and  in  the  use  of  expert  tes- 
timony. Medical  jurisprudence  uses  testimony  from  medico- 
legal experts.  Information  about  the  human  body  is  frequently 
needed.  It  is  necessary  to  examine  cadavers,  and  victims  of 
attacks  against  the  person,  such  as  wounds  by  firearms  or  other 
weapons,  strangulation,  precipitation  from  an  elevation,  asphyx- 
iation, poisoning,  rape,  etc.  Closely  connected  with  this  sort  of 
testimony  is  evidence  from  observers  with  the  microscope  who 
examine  traces  of  blood  or  of  sperm,  excrements,  hairs,  imprints 
of  hands  or  of  feet,  etc. 

Another  important  function  of  medico-legal  experts  is  to 
examine  accused  persons,  and  to  give  testimony  with  regard  to 
certain  diseases,  such  as  epilepsy,  insanity,  etc.,  which  may 
cause  irresponsibility.  The  importance  of  having  medical 
testimony  in  such  cases  can  hardly  be  questioned,  since  no 
judge  or  jury  can  be  expected  to  have  any  special  knowledge  of 
these  diseases.  The  practical  questions,  therefore,  are  as  to 
how  a  medico-legal  expert  is  to  testify,  and  what  influence  his 
testimony  is  to  have  upon  the  decision. 

A  medico-legal  expert  is  usually  required  to  answer  yes  or  no 
to  the  question  as  to  whether  or  not  the  accused  is  insane,  in 
spite  of  the  fact  that  an  absolute  distinction  cannot  be  drawn 
between  insanity  or  sanity  any  more  than  it  can  be  drawn  be- 
tween a  disease  of  any  part  of  the  body  and  a  healthy  condition 
of  that  part.  There  are  degrees  in  the  extent  to  which  the  mind 
can  be  diseased,  and  a  variety  of  ways  in  which  it  may  be  dis- 
eased. So  that  it  is  essential  that  the  medico-legal  expert  should 
be  free  to  diagnose  the  condition  of  the  accused  as  he  would 
any  other  case,  and  not  be  forced  to  give  a  categorical  answer. 

Closely  connected  with  this  form  of  answer  has  been  the  ques- 
tion of  penal  responsibility.  A  categorical  answer  to  this  ques- 
tion has  been  required  because  upon  this  answer  has  usually 


THE   SCIENTIFIC   PRINCIPLES   OF   EVIDENCE  29I 

depended  the  decision  of  the  judge  or  jury  as  to  the  responsibility 
of  the  accused.  But  this  practise  reveals  a  simple  and  naive 
conception  of  responsibility  which  fails  to  recognize  that  penal 
responsibility  should  vary  not  only  according  to  the  degree  and 
nature  of  the  disease,  but  also  according  to  psychological  and 
social  considerations.  So  that  the  medico-legal  expert,  while 
testifying  about  a  purely  medical  matter,  is  also  deciding  a 
question  which  is  in  part  psychological  and  social. 

The  reply  to  the  first  question,  as  to  how  a  medico-legal  ex- 
pert is  to  testify,  is  that  he  should  be  permitted  to  diagnose  the 
condition  of  the  accused,  as  he  would  diagnose  any  other  case. 
The  reply  to  the  second  question,  as  to  the  influence  his  testi- 
mony is  to  have  upon  the  decision,  is  not  so  simple.  Even  though 
his  testimony  is  purely  medical,  it  frequently  has  an  influence 
upon  the  decision  of  a  question  which  is  partly  psychological  and 
social,  and  this  obviously  is  wrong. 

At  the  present  time  the  question  as  to  whether  or  not  a  person 
accused  of  crime  is  insane  is  frequently  decided  by  a  judge  or 
jury.  This  is  manifestly  absurd,  since  a  judge  or  jury  can  have 
no  special  knowledge  of  insanity  or  any  other  disease.  The  ques- 
tion as  to  whether  a  defendant  is  diseased,  and  if  so  as  to  the 
nature  and  degree  of  his  disease,  whether  it  be  insanity,  epilepsy, 
etc.,  should  be  left  entirely  to  an  expert,  or  to  a  commission  or 
jury  of  experts. 

But  while  the  medico-legal  expert  should  have  the  power  of 
deciding  what  is  the  pathological  condition  of  the  defendant,  it  is 
not  necessary  that  he  should  make  the  final  decision  in  any  case. 
Psychological  and  social  considerations  also  must  be  taken  into 
account,  as  well  as  medical  considerations.  While  the  medico- 
legal expert  should  have  the  function  of  proving  the  medical 
facts,  these  facts  should  be  weighed  and  judged  in  their  relation 
to  the  other  pertinent  facts  by  a  judge  who  has  had  anthropolog- 
ical, psychological,  and  sociological  training. 

The  usual  custom  at  present  is  for  each  side  to  simimon 
medico-legal  experts.  It  goes  without  saying  that  these  experts 
are  expected  to  search  only  for  the  truth,  and  to  give  unbiased 
testimony.  But  it  is  natural  and  almost  inevitable  that  an 
expert  should  be  influenced  by  the  side  which  has  called  him, 
since  he  desires  to  please  that  side  in  order  to  be  called  again  and 
earn  the  fees.    When,  therefore,  there  is  any  doubt,  it  is  easy  for 


292  CRIMINOLOGY 

the  expert  to  decide  for  his  own  side.  Consequently,  a  public 
prosecutor  will  keep  on  hand  experts  who  will  always  or  nearly 
always  testify  against  insanity.  These  experts  are,  therefore, 
prosecutors  like  the  public  prosecutor  himself. 

This  contradictory  system  of  expert  testimony  is  probably  due 
to  the  fact  that  experts  do  not  always  agree.  It  has,  therefore, 
been  considered  necessary  to  have  a  number  of  expert  opinions 
presented,  and  then  to  have  the  decision  as  to  the  question  sub- 
mitted to  the  experts  made  by  another  authority.  But  even 
though  experts  who  know  something  about  the  question  at  issue 
do  not  always  agree,  and  sometimes  make  mistakes;  there  is  no 
reason  for  leaving  the  decision  to  lawyers  and  jurors  who  know 
nothing  about  the  question  involved.  The  decision  of  these 
medical  questions  should  be  left  entirely  to  the  medico-legal 
expert.  His  role  should  be  an  impartial  one,  namely,  the  func- 
tion of  examining  the  medical  facts  and  judging  them  like  a 
judge.  Hence  to  make  expert  testimony  contradictory  is  to 
make  the  judgment  contradictory,  which  is  a  contradiction  in 
terms. 

Several  methods  of  choosing  experts  under  the  existing  system 
of  procedure  may  be  suggested  which  would  make  the  experts 
non-partizan.  Inasmuch  as  the  functions  of  experts  are  like 
those  of  judges,  they  might  be  chosen  like  jurors  from  a  list 
prepared  beforehand,  the  right  of  challenging  being  given  to  both 
sides.  Or  the  two  sides  could  choose  from  this  list  in  concur- 
rence. When  a  specialist  not  on  the  list  is  needed,  he  could  be 
designated  by  the  judge,  while  each  side  would  have  the  right  to 
challenge. 

But  better  still  would  be  an  organized  system  of  medical 
jurisprudence.  Such  a  system  has  already  been  partially  devel- 
oped in  Germany.  In  each  province  there  is  a  college  of  experts 
to  which  appeal  can  be  made  from  the  decision  of  an  expert  at  a 
court  of  first  instance.  At  the  capital  there  is  a  scientific  deputa- 
tion which  acts  as  a  court  of  final  appeal.  In  order  to  establish  a 
system  of  medical  jurisprudence  there  should  be  one  or  more 
professional  experts  attached  to  each  court.  There  should  be 
courts  of  appeal  made  up  of  the  ablest  experts.  Then  if  there  is  a 
difference  of  opinion  among  the  experts,  or  the  decision  in  a  case 
is  contested,  the  question  at  issue  can  be  referred  to  this  court  of 
appeal  for  decision. 


THE  SCIENTIFIC  PRINCIPLES  OF  EVIDENCE  293 

A  corps  of  professional  experts  is  needed  for  a  system  of  med- 
ical jurisprudence.  At  present  the  medico-legal  experts  usually 
are  physicians  without  any  special  training.  Some  of  the  mis- 
takes they  make  are  due  to  the  fact  that  legal  medicine  is  not  yet 
highly  developed.  But  many  of  their  mistakes  are  due  to  a  lack 
of  specialized  knowledge.  This  knowledge  would  save  them 
from  errors  of  omission  due  to  failure  to  take  note  of  certain 
phenomena,  and  from  errors  of  commission  in  misinterpreting 
the  significance  of  other  phenomena.  In  order  to  develop  a 
corps  of  professional  experts  it  will  be  necessary  to  make  the 
profession  of  medico-legal  expert  a  regular  career  with  a  remu- 
neration sufficiently  large  to  attract  able  medical  students. 
These  students  would  specialize  in  the  courses  in  legal  medicine 
given  in  the  medical  schools.  Special  courses  in  legal  medicine 
are  already  being  given  in  the  medical  schools  at  Lyons  and 
Paris  in  France,  at  Lausanne  in  Switzerland,  and  elsewhere  in 
Europe.  It  is  possible  that  in  course  of  time  schools  of  legal 
medicine  will  be  established. 

In  addition  to  this  training  in  the  schools  there  should  be 
clinics  in  prisons,  insane  asylums,  and  morgues.  Medico-legal 
laboratories  should  be  established  in  connection  with  the  courts 
of  appeal  or  in  other  central  places  where  evidence  could  be 
examined  and  analyzed,  where  students  could  obtain  clinical 
experience,  and  where  experiments  could  be  carried  on.  Medico- 
legal data  should  be  accumulated  and  preserved  in  museums  in 
connection  with  these  laboratories.  Rules  for  the  examination 
of  cases  should  be  established,  and  forms  for  keeping  the  records 
of  cases  uniformly  should  be  devized.  By  all  of  these  means  the 
science  of  legal  medicine  would  be  developed  very  rapidly. 

Expert  Testimony 

So  far  I  have  been  discussing  medical  jurisprudence  alone. 
But  everything  which  has  been  said  applies  to  all  forms  of 
scientific  evidence  and  of  expert  testimony.  For  example,  there 
is  great  need  for  the  application  of  psychological  and  psychiatri- 
cal knowledge  in  criminal  cases.  A  corps  of  trained  psychologists 
and  psychiatrists  should  be  developed  to  furnish  this  knowledge 
in  the  same  manner  as  the  medico-legal  experts,  and  to  decide 
all  technical  questions  as  to  amentia,  insanity,  neuroses,  mental 


294  CRIMINOLOGY 

responsibility,  etc.  In  fact,  many  of  the  functions  now  being 
performed  by  the  medico-legal  experts  should  be  transferred  to 
the  psychologists  and  psychiatrists. 

Expert  testimony  is  given  by  chemists,  physicists,  phar- 
macists, mineralogists,  zoologists,  botanists,  etc.  It  is  given 
with  regard  to  firearms,  handwriting,  photography,  etc.  Expert 
testimony  can  sometimes  be  furnished  by  an  ignorant  and  simple- 
minded  person  about  a  subject  which  is  not  a  matter  of  general 
knowledge.  In  fact,  it  would  be  impossible  to  enumerate  all  of 
the  subjects  about  which  expert  testimony  may  be  required. 
Almost  any  conceivable  subject  might  at  some  time  or  other 
become  involved  in  a  question  at  issue  in  a  criminal  court. 

Scientific  evidence  and  expert  testimony  can  be  used  not  only 
to  aid  in  ascertaining  the  facts  as  to  whether  a  crime  has  been 
committed  and  as  to  who  has  committed  it,  but  also  to  aid  in 
sentencing  the  convicted  criminal.  Anatomical,  physiological, 
psychological,  and  sociological  evidence  may  be  used  to  aid  in 
deciding  wisely  as  to  the  best  sort  of  penal  treatment  for  each 
criminal,  thus  making  possible  a  scientific  system  of  the  in- 
dividualization of  punishment.  Much  of  this  evidence  can  be 
furnished  by  the  medico-legal,  the  psychological,  and  the 
psychiatrical  experts. 

Expert  testimony  will  always  be  a  superior  source  of  informa- 
tion at  the  disposal  of  justice,  a  means  of  securing  scientific 
evidence  of  which  more  and  more  use  should  be  made.  Judges 
are  not  competent  to  decide  technical  questions.  But  while  a 
judge  cannot  be  expected  to  have  all  of  this  technical  knowledge, 
he  should  have  enough  general  knowledge  to  know  when  expert 
testimony  should  be  used.  Courses  should,  therefore,  be  given 
in  law  schools  acquainting  those  who  may  become  judges  with 
the  general  nature  of  expert  testimony,  and  with  the  occ3,sions 
on  which  such  testimony  is  needed. 

Abolition  of  the  Coroner's  Office 

When  a  system  of  medical  jurisprudence  has  been  established 
it  will  be  easy  to  abolish  the  coroner's  office.  This  institution 
for  examining  into  the  causes  of  violent  and  suspicious  deaths 
originated  in  England.  In  many  of  the  states  the  coroner  is 
elected.     Frequently  he  is  neither  lawyer  nor  physician,  not- 


THE   SCIENTIFIC   PRINCIPLES   OF   EVIDENCE  295 

withstanding  the  fact  that  he  has  legal  functions  to  perform,  and 
has  to  judge  medical  questions.  ^  The  coroner's  examination  be- 
comes all  the  more  absurd  when  a  lay  jury  is  summoned  to 
assist  in  the  examination,  for  the  jurors  are  even  less  competent 
to  judge  the  evidence  placed  before  them  than  the  coroner.  So 
that  the  work  of  the  coroner  is  usually  grotesquely  inadequate 
and  erroneous,  even  when  he  is  aided  by  medical  assistants. 

About  forty  years  ago  the  coroner's  office  was  abolished  in 
Massachusetts,  and  a  board  of  medical  examiners  was  appointed 
to  make  the  examinations  previously  made  by  the  coroner.  It  is 
evident  that  these  examinations  should  be  made  by  competent 
medical  authorities,  and  that  their  decisions  upon  these  medical 
matters  should  be  final.  The  legal  functions  of  the  coroners 
should  be  transferred  to  the  criminal  courts  in  which  will  be 
tried  those  accused  of  causing  the  deaths  investigated  by  the 
medical  examiners.  In  this  fashion  the  rights  of  the  accused  will 
be  adequately  safeguarded. 

The  medico-legal  experts  in  the  system  of  medical  juris- 
prudence described  above  would  be  competent  to  make  these 
examinations.  Furthermore,  the  medico-legal  laboratories  and 
museums  would  aid  greatly  in  this  work,  while  the  records  of 
the  autopsies  made  by  the  experts  would  furnish  valuable  data 
to  legal  medicine. 

The  Oath 

But  most  of  the  evidence  in  a  criminal  trial  will  ordinarily 
be  furnished  by  witnesses  who  are  neither  scientists  nor  experts, 
but  who  have  chanced  to  observe  events  and  circimistances 
connected  with  the  question  at  issue.  Science  may,  however, 
be  applied  in  testing  the  veracity  of  this  testimony.     The 

1  In  the  course  of  an  investigation  of  the  coroner's  office  in  New  York 
City  made  in  1914  by  the  Commissioner  of  Accounts  it  was  found  that  there 
had  been  sixty-five  coroners  since  the  consolidation  of  the  city  of  whom 
nineteen  were  physicians,  eight  were  undertakers,  seven  were  politicians, 
six  were  real  estate  dealers,  two  were  saloon-keepers,  two  were  plumbers, 
etc.  The  report  of  this  investigation  recommended  the  abolition  of  the 
coroner's  office  and  the  appointment  of  a  board  of  medical  examiners. 
(Commissioner  L.  M.  Wallstein,  Report  on  Special  Examination  of  the  Ac- 
counts and  Methods  of  the  Office  of  Coroner  in  the  City  of  New  York,  1915.) 
These  recommendations  were  adopted  in  legislation  which  went  into  effect 
on  January  i,  1918. 


296  CRIMINOLOGY 

standards  according  to  which  the  value  of  testimony  has  been 
judged  have  usually  been  very  naive.  The  oath  has  generally 
been  regarded  as  a  sufficient  guarantee  of  the  veracity  of  testi- 
mony. It  is  true  that  the  oath  may  furnish  some  indication  of 
the  intention  of  the  witness  to  tell  the  truth,  but  it  obviously  can- 
not confer  in  the  slightest  degree  the  ability  to  tell  the  truth. 
A  judge  cannot  safely  be  assured  that  the  witness  is  veracious 
if  he  has  no  other  evidence  than  the  oath  of  the  truth  of  the 
testimony  of  the  witness. 

The  oath  is  useless  for  truthful  witnesses  because  they  will 
endeavor  to  tell  the  truth  anyway.  It  is  ineffective  for  untruth- 
ful witnesses,  unless  religious  superstition  scares  them  into  an 
attempt  to  tell  the  truth.  The  compulsory  oath  is  incompatible 
with  liberty  of  conscience  and  of  religious  belief.  This  is  some- 
times recognized  by  the  law,  as,  for  example,  in  the  Swiss  con- 
stitution which  states  that  no  one  shall  be  forced  to  perform  a 
religious  act,  and  that  therefore  no  one  shall  be  forced  to  take 
an  oath.  To  require  an  oath  of  the  accused  that  he  is  innocent 
is  especially  absurd  and  unjustifiable.  The  canonical  law  in 
creating  the  inquisitorial  procedure  in  the  thirteenth  century 
submitted  the  accused  to  the  oath,  and  this  custom  was  intro- 
duced into  the  law  of  almost  all  of  Europe,  the  principal  excep- 
tion being  England.  The  oath  in  this  case  necessitates  the  per- 
jury of  the  guilty  accused  if  he  proposes  to  stand  trial  for  his 
crime. 

The  oath  may,  therefore,  secure  a  certain  amount  of  subjective 
truth  in  the  sense  of  increasing  the  intention  of  the  witness  to 
tell  the  truth,  but  Uttle  if  any  objective  truth  in  the  sense  of 
increasing  the  degree  of  concurrence  of  his  testimony  with  the 
facts.  That  is  to  say,  by  the  threat  of  punishment  which  its 
religious  character  implies  the  oath  may  remove  the  intention 
to  hide  the  truth,  but  this  does  not  necessarily  increase  the  ca- 
pacity for  telling  the  truth.  The  ancient  Romans  apparently 
regarded  the  oath  as  guaranteeing  subjective  truth  only,  for 
Mommsen  tells  us  that  in  the  Roman  criminal  procedure  wit- 
nesses swore  to  what  they  thought  they  had  seen  or  heard,  and 
not  to  what  they  knew.  In  other  words,  it  was  an  oath  of  good 
faith. 

The  oath  may  help  a  little  to  secure  objective  truth  by  im- 
pressing upon  witnesses  the  solemnity  of  the  occasion,  and  thus 


THE   SCIENTIFIC  PRINCIPLES   OF  EVIDENCE  297 

increasing  their  attentiveness.  But  attentiveness  alone  cannot 
do  much  to  strengthen  the  memory,  so  that  the  utility  of  the 
oath  for  securing  objective  truth  is  slight  indeed.  If  then  the 
oath  is  to  be  used  at  all,  its  greatest  efficacy  will  be  in  securing 
subjective  truth  from  religious  persons  who  are  so  untruthful 
as  to  give  false  testimony  knowingly,  if  not  prevented  by  the 
threat  of  punishment  implied  in  the  oath.  For  the  irreligious 
the  oath  is  not  only  useless  but  unjust,  because  it  is  an  imposi- 
tion upon  their  freedom  of  belief  and  action,  and  in  its  place 
should  be  substituted  a  simple  affirmation  of  intention  to  tell 
the  truth. 

The  Psychological  Examination  of  Witnesses 

During  the  last  few  decades  experimental  psychology  has  been 
greatly  developed.  Much  study  has  been  devoted  to  the  re- 
liability of  memory.  It  is  evident  that  when  the  witness  in- 
tends to  tell  the  truth  the  accuracy  of  testimony  will  depend 
upon  the  memory,  and  that  the  causes  of  erroneous  testimony 
are  to  be  found  in  defects  of  the  memory. 

The  primary  cause  of  error  may  be  an  abnormal  condition  of 
the  sensory  organs.  These  organs  may  be  congenitally  unable 
to  convey  correct  impressions  of  occurrences  external  to  the 
body.  Or  they  may  be  incapacitated  by  nervous  diseases  such 
as  epilepsy,  hysteria,  neurasthenia,  psychasthenia,  cerebral 
syphilis,  alcoholism,  drug  habits,  etc.  Or  they  may  be  inca- 
pacitated by  a  temporary  condition,  such  as  a  wound  in  the  head 
or  a  momentary  state  of  emotional  excitement.  But  even  if 
the  sensory  organs  convey  accurate  impressions  of  these  exter- 
nal occmrences,  these  impressions  may  become  distorted  by 
reactions  within  the  brain.  The  judgment  may  misconstrue 
these  sensory  impressions.  The  influence  of  age,  sex,  occupation, 
beliefs,  etc.,  must  be  noted  in  this  connection.  Each  impression 
upon  reaching  the  brain  awakens  memories  of  past  impressions. 
These  impressions  combine  with  each  other,  and  lapses  in  the 
recollection  of  one  impression  may  be  filled  by  memories  of  other 
impressions,  thus  rendering  these  memories  more  or  less  inac- 
curate. The  memory  may  also  be  modified  by  means  of  sug- 
gestions from  the  outside.  These  are  some  of  the  causes  which 
make  the  memory  unreliable. 


298  CRIMINOLOGY 

Witnesses  may  be  classified  according  to  sex  and  age,  or  ac- 
cording to  their  peculiarities  in  giving  testimony.  In  some  re- 
spects young  children  are  good  witnesses,  since  they  have  com- 
paratively few  beliefs  or  prejudices  to  bias  their  testimony.  But 
their  imagination  lacks  restraint,  and  they  possess  a  weak  sense 
of  responsibility.  They  are  usually  very  suggestible,  and  lie 
for  different  motives  or  for  no  reason  whatever.  They  lack  an 
exact  notion  of  time,  and  have  few  abstract  ideas.  The  young 
boy  is  ordinarily  a  better  witness  than  the  young  girl,  because 
he  observes  more  carefully.  The  young  girl  is  not  so  good  a 
witness,  because  she  stays  at  home  and  sees  little  of  the  world. 
She  has  too  vivid  an  imagination,  and  frequently  gives  false 
testimony  for  the  sake  of  excitement.  On  the  other  hand,  adults 
observe  carefully  what  they  notice,  but  their  attention  is  de- 
termined largely  by  their  interests,  and  their  observations  tend 
to  become  colored  by  their  beliefs  and  prejudices. 

Witnesses  may  be  classified  according  to  their  desire  to  tell 
the  truth.  Those  who  do  not  intend  to  tell  the  truth  can  fre- 
quently be  discovered  by  means  of  psychological  methods,  and 
the  truth  forced  from  them  in  spite  of  themselves.  But  even 
those  who  desire  to  tell  the  truth  frequently  fail  to  do  so  for  the 
reasons  which  have  been  stated.  These  include  many  types 
ranging  from  the  pathological,  such  as  the  insane,  the  paranoiac, 
the  hysterical,  etc.,  to  the  normal  or  nearly  normal  who  give 
false  testimony  unwittingly  on  account  of  errors  of  the  memory 
to  which  any  normal  person  is  liable. 

These  psychological  facts  can  be  used  in  practical  jurispru- 
dence in  a  psychiatric  and  psychological  examination  of  the  wit- 
ness which  will  reveal  his  mental  traits.  In  the  first  part  of 
such  an  examination  it  would  be  ascertained  whether  or  not  a 
witness  is  pathological,  that  is  to  say,  whether  or  not  his  sensory 
organs  are  in  a  diseased  condition,  or  if  he  is  lacking  in  capacity 
to  fix  the  attention,  or  in  ability  to  reproduce  what  he  has  seen. 
But  this  examination  should  be  carried  far  enough  to  ascertain 
the  normal  mental  peculiarities  of  the  witness.  For  example, 
by  means  of  a  comparatively  simple  test  it  can  be  ascertained 
whether  the  memory  of  the  witness  is  of  the  visual,  the  auditory, 
or  the  tactile  type.  This  fact  is  of  great  significance  in  estimat- 
ing the  value  of  his  testimony  about  a  particular  occurrence. 

It  has  been  suggested  that  by  means  of  such  an  examination 


THE   SCIENTIFIC   PRINCIPLES   OF   EVIDENCE  299 

can  be  determined  the  "constants  of  certitude"  of  a  witness, 
that  is  to  say,  the  degree  of  accuracy  to  be  expected  of  him, 
and  that  the  value  of  his  testimony  can  be  estimated  according 
to  this  constant  number.  It  is  doubtful,  however,  if  this  would 
be  wise,  since  the  value  of  a  person's  testimony  varies  according 
to  the  occurrence  about  which  he  is  testifying.  Furthermore, 
such  an  examination  would  probably  not  be  necessary  for  every 
witness.  It  would  be  necessary  when  the  testimony  was  about 
a  complicated  situation,  and  where  the  testimony  was  contra- 
dictory. It  should  always  be  given  to  a  witness  whose  testimony 
is  decisive,  especially  when  there  is  contradictory  testimony 
on  essential  points.  It  should  be  given  whenever  there  is  reason 
to  believe  that  a  witness  is  lying,  or  is  not  telling  as  much  as  he 
knows.  By  an  analysis  of  the  association  of  ideas  in  the  mind 
of  the  witness  much  can  be  learned  as  to  whether  he  has  been 
lying,  and  as  to  the  true  contents  of  his  memory. 

The  use  of  spontaneous  and  suggested  testimony  should  be 
governed  by  the  mental  traits  of  the  witness.  As  a  general  rule, 
spontaneous  testimony  is  much  more  accurate  than  suggested 
testimony,  though  not  so  detailed.  Consequently,  suggestive 
questions  should  ordinarily  be  avoided,  especially  when  the 
witness  has  a  strong  imagination.  But  sometimes  in  the  case 
of  a  laconic  witness  who  has  no  interest  in  the  affair  it  becomes 
necessary  to  ask  suggestive  questions  in  order  to  draw  out  his 
testimony.  These  questions  should  be  carefully  framed  in  order 
to  avoid  influencing  the  character  of  the  testimony.  The  sug- 
gestive power  of  the  press  should  always  be  taken  into  account 
whenever  it  has  influence  upon  the  testimony  of  a  witness. 

In  order  to  make  these  examinations  it  would  be  necessary 
to  have  a  psychological  expert  attached  to  every  criminal  court. 
The  medico-legal  expert  could  in  many  cases  be  given  the  train- 
ing which  would  fit  him  to  perform  these  functions.  In  an 
office  adjoining  the  courtroom  he  could,  whenever  necessary, 
quickly  apply  the  tests  which  would  determine  the  mental 
peculiarities  of  a  witness. 

Furthermore,  all  those  who  take  part  in  conducting  a  judicial 
examination  or  trial,  such  as  judges,  prosecutors,  counsel  for  the 
defense,  etc.,  should  have  some  acquaintance  with  these  psy- 
chological facts  and  principles.  This  would  enable  them  to 
estimate  more  accurately  the  value  of  testimony.    They  would 


300  CRIMINOLOGY 

then  know  under  what  circumstances  a  witness  should  be  sent 
to  the  psychological  expert  for  an  examination. 

The  above  discussion  shows  the  practical  significance  of 
psychological  facts  and  principles  for  the  presentation  and 
judging  of  legal  evidence.  Up  to  the  present  time  evidence  has 
been  judged  by  empirical  rules  and  principles,  which  frequently 
have  been  wrong.  The  application  of  these  scientific  principles 
would  make  possible  a  much  higher  degree  of  certitude  as  to  the 
veracity  and  accuracy  of  testimony. 

Furthermore,  the  psychological  examination  could  take  the 
place  of  the  vulgar  and  frequently  brutal  ordeals  of  the  "  third 
degree."  This  method  is  frequently  used  by  the  police  to  extort 
confessions  and  other  kinds  of  desired  testimony.  It  sometimes 
brings  to  light  genuine  facts,  but  almost  invariably  does  so  in 
an  illegal  and  brutal  fashion.  It  frequently  gives  rise  to  false 
testimony  which  may  furnish  the  basis  for  a  miscarriage  of 
justice.  The  psychological  method  is  infinitely  superior,  because 
it  is  quicker,  far  more  reliable,  and  is  just  and  humane. 

Heretofore  it  has  been  the  theory  of  the  law  that  the  testi- 
mony of  one  witness  is  as  good  in  quality  as  the  testimony  of 
any  other  witness.  But  this  theory  has  never  been  consistently 
applied  in  practise,  because  judges,  whether  professional  or  lay, 
have  always  given  more  weight  to  the  testimony  of  some  wit- 
nesses than  to  the  testimony  of  other  witnesses.  Psychology 
shows  us  that  there  are  great  differences  in  the  reliability  of 
witnesses.  But  the  judges  have  discriminated  according  to 
purely  empirical  principles,  and  not  according  to  scientific 
principles.  The  judges  should,  therefore,  become  acquainted 
with  these  scientific  principles. 

In  similar  fashion  scientific  principles  should  be  applied  in 
the  analysis  of  the  results  of  the  physiological  and  sociological 
examinations.  On  the  basis  of  these  examinations  should  be 
decided  what  penal  treatment  is  to  be  given  to  those  who  are 
found  guilty  of  crimes. 

When  these  reforms  in  the  presentation  of  evidence  have 
been  accomplished,  the  scientific  stage  of  evidence  will  have 
been  attained.  Evidence  will  then  be  gathered  and  its  value 
estimated  according  to  scientific  principles  based  on  expert 
knowledge  derived  from  experiments  and  from  facts  which 
have  been  systematically  collected  and  studied. 


CHAPTER  XIX 
PUBLIC  DEFENSE  IN  CRIMINAL  TRIALS 

The  injustice  of  private  defense  —  Public  defense  and  the  reform  of  crim- 
inal procedure  —  Abolition  of  the  plea  of  guilty  —  Significance  of 
public  defense  for  a  scientific  criminal  procedure:  the  individualization 
of  punishment;  the  education  and  selection  of  prosecutors,  defenders, 
and  judges  —  Public  defense  and  the  contradictory  debate  —  Free 
civil  justice. 

It  is  an  axiom  of  the  law  that  a  person  charged  with  crime  is 
presumed  to  be  innocent  until  found  guilty;  and  yet  society 
does  all  it  can  to  convict  him,  but  almost  nothing  to  secure  for 
him  an  adequate  defense.  In  a  criminal  trial  the  prosecution 
is  conducted  by  a  public  prosecutor,  employed  by  the  state; 
but  the  defendant  at  the  bar  is  forced  to  provide  for  his  own 
defense.  He,  a  single  individual,  must  defend  himself  against 
the  state,  representing  many  individuals.  If  he  has  money  at 
his  command,  all  may  be  well  with  him.  If  he  has  no  money, 
his  plight  is  a  pitiable  one  indeed. 

It  is  true  that  the  public  prosecutor  is  charged  in  theory  with 
the  conservation  of  the  interests  of  the  defendant,  as  well  as 
with  the  duty  of  prosecuting  him.  But  it  is  a  notorious  fact 
that  in  practise  the  public  prosecutor  is  almost  invariably  bent 
on  securing  a  conviction,  regardless  of  the  interests  of  the  de- 
fendant. It  is  true  also  that  when  the  defendant  is  unable  to 
employ  counsel,  the  court  will  assign  counsel  for  the  defense. 
But  ordinarily  the  defense  furnished  by  an  assigned  counsel 
is  little  better  than  a  farce.  Consequently,  it  is  evident  that  the 
present  system  of  public  prosecution  coupled  with  private  de- 
fense in  our  criminal  procedure  does  not  maintain  the  balance 
between  social  and  individual  rights,  and  puts  rich  and  poor 
upon  a  very  unequal  standing  before  the  law. 

The  Injustice  of  Private  Defense 

In  the  pure  form  of  the  procedure  of  accusation  both  prosecu- 
tion and  defense  were  private.     Then  gradually  through  the 


302  CRIMINOLOGY 

influence  of  the  procedure  of  investigation,  prosecution  became 
public,  but  the  defense  has  remained  private.  In  England,  as 
late  as  1836,  no  person  prosecuted  for  any  felony,  except  treason, 
had  even  the  right  to  employ  counsel.  The  helplessness  of  the 
defendant  in  the  face  of  an  organized  prosecution  carried  on  by 
trained  prosecutors  was  so  evident  that  in  the  English  courts  the 
judges  began  to  watch  over  the  interests  of  the  accused,  and 
became  to  a  certain  extent  counsel  for  the  defense.^ 

The  palpable  injustice  of  this  system  led,  in  the  first  half  of 
the  nineteenth  century,  to  the  extension  of  this  privilege  of 
securing  counsel  to  all  those  prosecuted  for  crime,  and  for  matters 
of  fact  as  well  as  questions  of  law.  So  that  if  the  defendant  has 
the  means  to  employ  counsel  as  able  as  the  counsel  employed  by 
the  prosecution,  he  is  likely  to  obtain  justice  in  the  trial.  If, 
however,  a  defendant  is  poor,  as  is  frequently  the  case,  he  is 
unable  to  procure  the  assistance  of  counsel,  so  that  this  system 
is  unjust  to  the  poor  defendant. 

When  a  defendant  is  unable  to  employ  counsel,  it  becomes  the 
duty  of  the  judge  to  assign  a  lawyer  practising  in  his  court  to  take 
charge  of  the  defense.  As  a  general  rule,  this  lawyer  is  young 
and  comparatively  inexperienced,  and  receives  no  compensa- 
tion from  the  court  for  performing  this  service.  The  usual  result 
is  that  the  lawyer  endeavors  to  ascertain  the  financial  resources 
of  the  defendant  in  order  to  determine  whether  there  is  any 

^  Sir  William  Blackstone,  writing  in  the  latter  part  of  the  eighteenth  cen- 
tury, comments  upon  this  situation  as  follows: 

"It  is  a  settled  rule  at  common  law,  that  no  counsel  shall  be  allowed  a 
prisoner  upon  his  trial,  upon  the  general  issue  in  any  capital  crime,  unless 
some  point  of  law  shall  arise,  proper  to  be  debated.  A  rule,  which  (however 
it  may  be  palliated  under  cover  of  that  noble  declaration  of  the  law,  when 
rightly  understood,  that  the  judge  shall  be  counsel  for  the  prisoner;  that  is, 
shall  see  that  the  proceedings  against  him  are  legal  and  stridtly  regular) 
seems  to  be  not  at  all  of  a  piece  with  the  rest  of  the  humane  treatment  of 
prisoners  by  the  English  law.  And  the  judges  themselves  are  so  sensible 
of  this  defect  that  they  never  scruple  to  allow  a  prisoner  counsel  to  instruct 
him  what  questions  to  ask,  or  even  to  ask  questions  for  him,  with  respect 
to  matters  of  fact;  for  as  to  matters  of  law  arising  on  the  trial,  they  are  en- 
titled to  the  assistance  of  counsel."    {Commentaries,  Book  IV,  Chap.  25.) 

It  is  obviously  most  unwise  to  put  the  judge  in  a  partizan  position  by 
encouraging  him  to  take  the  side  either  of  the  prosecution  or  of  the  defense. 
And  yet  this  is  likely  to  happen  when  one  of  the  two  sides  in  a  trial  is  much 
weaker  than  the  other  side. 


PUBLIC  DEFENSE   IN  CRIMINAL  TRIALS  303 

possibility  of  securing  a  fee.  If  there  is  no  such  possibility,  his 
desire  is  to  dispose  of  the  case  with  as  little  trouble  as  possible. 
Under  such  conditions  the  defense  will  inevitably  be  inadequate. 

It  even  happens  sometimes  that  the  assigned  counsel  will  try, 
first  of  all,  to  persuade  the  defendant  to  plead  guilty,  regardless 
of  whether  or  not  he  is  guilty.  If  the  counsel  succeeds,  he  is  re- 
lieved from  the  burden  of  expending  time  and  effort  in  defending 
the  case.  The  defendant  may,  however,  protest  his  innocence 
and  insist  upon  a  trial.  The  lawyer  will  then  give,  to  the  prepara- 
tion of  the  case  as  little  time  as  possible.  The  defendant  re- 
ceives a  weak  and  inadequate  defense  in  opposition  to  the  care- 
fully prepared  prosecution  of  the  public  prosecutor.  This  is 
grossly  unjust  to  the  defendant  who  is  so  unfortunate  as  to  be 
unable  to  employ  counsel,  and  such  defendants  sometimes  plead 
guilty  rather  than  be  tried  with  so  inefficient  a  defense.^ 

In  order  to  remove  the  evils  which  arise  out  of  ineflScient  de- 

^  According  to  the  reports  of  the  Court  of  General  Sessions  in  the  County 
of  New  York,  free  counsel  was  assigned  in  that  court  to  331  poor  defendants 
in  1906,  and  to  1,495  Poor  defendants  in  1915.  These  figures  indicate  to  a 
slight  extent  the  large  number  of  persons  in  this  country  to  wliom  counsel 
is  assigned. 

Attempts  have  been  made  in  the  past  in  various  countries  to  provide 
defense  for  poor  defendants.  The  tribunes  of  ancient  Rome  were  prepared 
to  take  the  part  of  a  defendant  in  a  criminal  case.  (C.  Lombroso,  Crime, 
Its  Causes  and  Remedies,  Boston,  1911,  pp.  327-328.)  In  Piedmont  and  in 
Naples  there  used  to  be  an  official  called  the  "advocate  of  the  poor"  who 
acted  as  counsel  in  all  pauper  cases,  and  such  an  official  still  exists  in  the 
city  of  Alexandria  in  Piedmont.  (E.  Ferri,  Criminal  Sociology,  Boston, 
1917,  p.  472.)  It  appears  that  a  similar  official  called  the  "paiiperus  pro- 
curator" existed  under  the  Papal  government  in  Rome.  (See  Robert  Brown- 
ing, The  Ring  and  the  Book.)  An  advocate  of  the  poor  was  provided  at  pub- 
lic expense  in  Spain  in  the  fifteenth  century.  (Prescott,  History  of  Fcrditiand 
and  Isabella,  Vol.  I,  p.  194.)  A  similar  official  still  exists  in  Spain,  in  the 
Argentine  Republic,  and  in  Mexico.  Free  legal  defense  is  provided  to  poor 
defendants  through  the  bar  associations  in  France  (M.  Parmelee,  The 
Principles  of  Anthropology  and  Sociology  in  Their  Relations  to  Criminal 
Procedure,  New  York,  1908,  p.  276),  and  in  Scotland.  (E.  R.  Keedy,  Crim- 
inal Procedure  in  Scotland,  in  the  Jour.  Crim.  Law,  Vol.  Ill,  No.  5,  Jan., 

1913,  PP-  738-9-) 

Other  cases  might  be  cited,  but,  so  far  as  I  can  discover,  up  to  the  present 
day  there  has  been  no  thoroughgoing  system  of  public  defense  in  criminal 
trials  in  any  country.  When  the  state  has  paid  for  defending  poor  prisoners 
the  defense  has  naturally  been  more  efficient  than  when  such  legal  assistance 
has  been  gratuitous. 


304  CRIMINOLOGY 

fense  for  poor  defendants,  it  is  necessary  to  take  the  next  step, 
which  is  also  the  final  one,  in  the  historical  evolution  which  has 
been  raising  the  eiB&ciency  of  the  defense  to  the  level  of  the 
efficiency  of  the  prosecution.  This  step  is  the  estabhshment  of  a 
system  of  public  defense,  which  would,  I  believe,  be  the  most 
important  reform  in  the  existing  system  of  procedure,  and  would, 
furthermore,  be  of  the  greatest  significance  for  the  development 
of  a  new  system  of  criminal  procedure  based  upon  the  data  and 
inductions  of  the  modern  science  of  criminology.^ 

The  present  system  of  procedure  can  be  improved  in  several 
respects  by  the  introduction  of  public  defense.  In  the  first 
place,  it  is  evident  that  the  standing  of  rich  and  poor  before  the 
law  would  be  equalized,  for  the  poor  would  then  have  as  efiicient 
a  defense  as  the  rich.  But  still  more  would  be  accomphshed  by 
this  reform.  Society  now  claims  the  right  to  prosecute,  but  does 
little  or  nothing  to  defend.  And  yet  no  one,  not  even  a  rich 
person,  ought  to  be  forced  to  provide  for  his  own  defense.  Espe- 
cially true  is  this  of  the  innocent  victims  of  public  prosecution. 
They  have  suffered  the  humiliation  of  being  prosecuted,  have 
been  forced  to  face  the  possibility  of  being  convicted,  and  have 
lost  time  and  money  in  being  tried  for  crimes  of  which  they  are 
ultimately  acquitted.  For  this  suffering  and  loss  they  ought  to 
be  indemnified  by  the  state,  as  is  now  being  done  in  several 
countries.^   The  least  that  society  can  do  for  them  is  to  provide 

'  Bills  providing  for  a  public  defender  have  been  introduced  into  the 
legislatures  of  several  states  during  the  past  twenty  years.  (See  the  Report 
of  the  Law  Reform  Committee  of  the  Association  of  the  Bar  of  the  City  of  New 
York  on  The  Necessity  and  Admsability  of  Creating  the  Office  of  Public  De- 
fender, New  York,  1915,  pp.  2-3.)  This  measure  has  been  advocated  by 
the  Socialist  party  in  various  countries. 

But  so  far  as  the  present  writer  has  been  able  to  discover,  he  was  the 
first  writer  in  this  country,  or,  for  that  matter,  in  the  world,  to  present  a 
comprehensive  statement  of  the  case  for  public  defense  in  criminal  trials. 
(Maurice  Parmelee,  Public  Defense  in  Criminal  Trials,  in  the  International 
Socialist  Review,  October,  1905;  The  Principles  of  Anthropology  and  Sociology 
in  Their  Relations  to  Criminal  Procedure,  New  York,  1908,  Chapter  VIII; 
Public  Defense  in  Criminal  Trials,  in  the  Proceedings  of  the  Kansas  State 
Conference  of  Charities  and  Correction,  1909;  Public  Defense  in  Criminal 
Trials,  in  the  Jour.  Crim.  Law,  Vol.  I,  No.  5,  January,  1911.) 

Furthermore,  the  present  writer  is  the  only  one  up  to  the  present  time 
who  has  pointed  out  the  significance  of  public  defense  in  criminal  trials  for 
a  system  of  criminal  procedure  based  upon  scientific  principles. 

2  See  Chapter  XXI. 


PUBLIC  DEFENSE   IN   CRIMINAL   TRIALS  305 

them  with  adequate  defense.  And  yet  they  are  left  entirely 
to  their  own  resources  to  secure  this  defense.  If  they  lack  suffi- 
cient resources  to  secure  adequate  defense,  they  are  given  the 
existing  form  of  official  defense,  which,  as  I  have  shown,  is  in 
the  main  a  failure. 

Public  Defense  and  the  Reform  of  Criminal  Procedure 

Public  defense  will,  in  all  probability,  prevent  most  of  the 
exploitation  of  sensational  cases  caused  by  both  prosecuting 
attorneys  and  counsel  for  the  defense  who  are  endeavoring  to 
advertize  themselves  rather  than  to  secure  a  speedy  administra- 
tion of  public  justice.  By  means  of  such  exploitation  an  un- 
healthy public  interest  in  crime  is  stimulated,  and  the  adminis- 
tration of  justice  is  diverted  from  its  important  social  function. 

The  introduction  of  public  defense  will  inevitably  meet  opposi- 
tion from  some  members  of  the  bar.  But  the  bar  associations, 
which  are  constantly  striving  to  raise  the  standard  of  the  legal 
profession,  should  favor  this  reform,  because  it  will  tend  to 
purify  the  profession  by  eliminating  the  disreputable  lawyer. 
Furthermore,  many  positions  as  public  defenders  would  be 
created  which  would  go  to  the  better  class  of  lawyers,  and  a 
certain  amount  of  the  better  kind  of  criminal  practise  might 
still  remain.  Public  defense  would  not  necessarily  destroy 
private  criminal  practise  at  once.  Defendants  might  still  retain 
the  privilege  of  employing  private  counsel  when  they  so  desire. 
It  is  impossible  to  determine  at  present  whether  it  would  ever 
be  well  for  the  public  defender  to  allow  a  case  to  go  entirely 
out  of  his  hands.  It  might  be  well  for  him  to  have  supervision 
in  every  case,  and  in  course  of  time  he  would  probably  be  given 
complete  control  of  every  criminal  case.  But  for  a  time,  at  any 
rate,  private  counsel  would  cooperate  with  him  in  defending 
cases.  Thus  public  defense  would  leave  a  large  field  for  honor- 
able and  dignified  practise  either  as  a  public  defender  or  as  a 
private  counselor. 

Public  defense  will  destroy  much  of  the  opposition  now  made 
by  some  lawyers  to  the  reform  of  criminal  procedure.  This 
opposition  grows  in  large  part  out  of  the  fear  that  these  reforms 
will  limit  their  field  of  practise.  Inasmuch  as  public  defense 
would  realize  this  fear,  they  would  no  longer  have  much  in- 


3o6  CRIMINOLOGY 

terest  in  opposing  other  reforms.  Thus  one  great  obstacle  in 
the  way  of  the  reform  of  criminal  procedure  would  be  removed. 

The  principal  effect  of  public  defense  as  a  reform  of  the 
present  system  of  criminal  procedure  will  be  to  render  much  less 
likely  the  conviction  of  innocent  persons.  It  may  be  asserted, 
however,  that  it  will  also  result  in  the  acquittal  of  more  guilty 
persons.  If  this  were  true,  it  would  be  a  serious  objection  to 
public  defense,  for  criminal  procedure  should  not  become  any 
less  effective  in  securing  the  conviction  of  the  guilty.  But  this 
criticism  is  not  true,  because,  in  the  first  place,  public  defense 
would  make  public  prosecution  no  less  effective.  In  the  second 
place,  in  many  trials  at  the  present  time  professional  criminals 
employ  counsel  more  able  than  the  public  prosecutor,  thus 
greatly  increasing  the  chances  for  their  acquittal.  If  public 
defense  was  made  the  rule,  so  that  defendants  in  criminal  cases 
could  not  employ  private  counsel,  the  defense  would  be  on  an 
equality  with  the  prosecution  with  respect  to  ability,  so  that 
professional  criminals  would  be  unable  to  secure  an  acquittal  by 
employing  counsel  superior  to  the  prosecution. 

Public  defense  would  eliminate  almost  entirely  the  many 
disreputable  lawyers  in  criminal  practise.  The  existence  of 
these  so-called  "shyster"  lawyers  is  favored  on  the  one  hand 
by  professional  criminals,  who  need  the  services  of  unscrupulous 
counsel,  and  on  the  other  hand  by  poor  and  ignorant  defendants, 
whose  precarious  situation  makes  them  the  easy  prey  of  these 
lawyers.  Under  a  system  of  public  defense,  however,  all  the 
cases  of  professional  criminals  and  of  these  poor  and  ignorant 
defendants  would  be  in  the  hands  of  the  public  defender,  so 
that  the  field  of  activity  for  the  disreputable  lawyer  would  be 
destroyed.  Public  defense  would,  therefore,  tend  to  purify 
the  legal  profession. 

The  public  defender  could  do  much  more  effective  work  than 
the  probation  oflScer.  This  officer  exists  in  certain  of  the  courts 
in  states  where  probation  or  parole  laws  have  been  enacted. 
Part  of  his  work  is  to  prevent  some  of  the  abuses  which  have 
been  described.  As  a  general  rule  he  can  have  nothing  to  do 
with  a  criminal  case  until  the  defendant  has  been  convicted 
or  has  pleaded  guilty.  He  is  then  directed  by  the  judge  to  in- 
vestigate the  case.  Having  gathered  as  much  information  as 
possible,  he  reports  to  the  judge.    He  may  also  make  a  recom- 


PUBLIC   DEFENSE   IN   CRIMINAL   TRIALS  307 

mendation  as  to  the  best  method  of  disposing  of  the  case.  Where 
the  prisoner  appears  to  have  been  convicted  unjustly,  or  where 
leniency  seems  desirable,  he  recommends  leniency.  He  may 
thus  prevent  to  a  slight  extent  some  of  these  abuses.  But  he 
is  narrowly  limited  in  his  powers  and  opportunities.  His  work 
is  performed  in  a  more  or  less  haphazard  and  incidental  manner, 
and  his  success  depends  largely  upon  the  judges  under  whom  he 
happens  to  be  working.  He  is  usually  unable  to  influence  a  case 
until  after  the  greatest  injury  has  been  inflicted,  and  is  then 
able  to  alleviate  only  to  a  slight  degree  the  effects  of  the  injury. 

The  public  defender,  on  the  contrary,  would  have  charge  of  a 
case  from  the  outset  and  could  prevent  all  of  the  abuses  which 
have  been  described.  The  conviction  of  innocent  persons  due 
to  inefficient  defense  by  lawyers  appointed  by  the  judge  would 
no  longer  be  possible.  The  work  of  investigating  the  past 
record  of  prisoners  about  to  be  sentenced,  now  done  by  proba- 
tion officers,  could  be  done  as  well  or  better  by  the  public  de- 
fender. In  most  cases  he  would  already  have  made  this  investi- 
gation while  conducting  the  trial.  The  public  defender  would 
thus  become  to  a  large  extent  the  logical  successor  of  the  pro- 
bation officer. 

Some  of  the  principal  evils  in  the  administration  of  the  law 
today  arise  out  of  long  delay  in  bringing  cases  to  trial.  These 
delays  in  criminal  cases  are  frequently  caused  by  the  public 
prosecutor,  who  is  looking  for  evidence  of  guilt.  The  public 
defender  would  in  the  meantime  be  searching  for  evidence  of 
innocence,  and  would  demand  a  trial  as  soon  as  he  had  obtained 
his  evidence.  Delay  in  bringing  a  case  to  trial  is  a  great  in- 
justice to  the  defendant,  especially  if  he  is  unable  to  give  bail 
and  is  forced  to  wait  in  prison.  The  public  defender,  by  se- 
curing proof  of  innocence,  could  in  many  cases  prevent  this 
delay. 

Abolition  of  the  Plea  of  Guilty 

Public  defense  in  criminal  trials  would  make  it  much  more 
feasible  to  dispense  with  the  present  method  of  allowing  de- 
fendants to  plead  guilty.  The  plea  of  guilty  does  not  exist 
in  European  Continental  systems  of  procedure,  ^  and  has  given 

'  Oliver  E.  Bodington,  An  OiiUine  of  the  French  Law  of  Evidence,  London, 
1904. 


3o8  CRIMINOLOGY 

rise  to  several  grave  abuses  in  Anglo-American  procedure.  The 
plea  of  guilty  is  permitted  in  order  to  expedite  the  business  of 
the  court.  A  defendant  in  a  criminal  trial  is  brought  before 
the  court  and  asked  whether  he  wishes  to  plead  guilty.  Many 
defendants,  owing  to  ignorance  of  court  procedure,  or,  in  the 
case  of  immigrants,  of  the  English  language,  are  incapable  of 
understanding  this  question.  It  sometimes  happens  that  one 
of  these  ignorant  defendants,  who  is  not  represented  by  counsel, 
will  answer  affirmatively  to  this  question.  He  will  plead  guilty 
unwittingly,  and  frequently  without  intending  to  plead  guilty. 
This  grave  miscarriage  of  justice  can  happen  because  the  de- 
fendant does  not  have  adequate  representation  in  court,  a  con- 
tingency which  would  never  arise  under  a  system  of  public 
defense.  In  other  cases  poor  and  ignorant  defendants  are  in- 
timidated into  pleading  guilty  because  of  the  lack  of  adequate 
means  of  defending  themselves. 

On  the  other  hand,  experienced  criminals  when  charged  with 
crime  frequently  take  advantage  of  this  opportunity  to  plead 
guilty.  They  will  plead  guilty  with  the  utmost  alacrity  in  order 
to  secure  as  a  reward  the  benefit  of  the  leniency  ordinarily  dis- 
played under  these  circumstances  by  the  law,  the  public  prose- 
cutors, and  the  judges.  It  often  happens  that  a  first  offender 
who  has  stood  trial  and  has  been  convicted  will  receive  a  longer 
sentence  than  an  old  ofi'ender  who  has  pleaded  guilty  to  the 
same  crime.  Such  grotesque  mistakes  as  these  would  rarely 
happen  if  a  trial  were  held  in  each  case.  In  the  course  of  the 
trial  the  past  record  of  each  defendant  wovild  be  exposed,  and 
it  would  be  possible  to  judge  according  to  the  character  and 
past  record  of  the  criminal.  Public  defense  would  make  it 
much  more  feasible  to  have  a  trial  in  every  case,  because  the 
public  defender  would  be  ready  to  prepare  carefully  the  de- 
fense in  each  case,  and  would  be  able  to  guarantee  to  each  de- 
fendant a  fair  trial. 

The  plea  of  guilty  in  our  existing  system  of  criminal  procedure 
tempts  a  public  prosecutor  to  urge  a  defendant  to  plead  guilty 
in  order  to  save  himself  the  time  and  trouble  of  prosecuting 
the  case.  He  may  threaten  with  unusually  severe  punishment 
the  defendant  who  insists  upon  a  trial.  He  may  offer  to  allow 
the  defendant  to  plead  guilty  to  a  crime  less  serious  than  the 
one  with  which  he  is  charged.    Or  the  prosecutor  may  offer  to 


PUBLIC  DEFENSE   IN   CRIMINAL   TRIALS  309 

ask  the  judge  for  leniency  if  the  defendant  will  plead  guilty. 
As  a  result  poor  and  ignorant  defendants  are  frequently  fright- 
ened or  coerced  into  pleading  guilty.  No  defendant  should  be 
made  to  feel  that  he  is  jeopardizing  his  interests  by  insisting 
upon  a  trial.  The  public  defender  could  shield  the  innocent 
defendant  from  the  threats  of  the  public  prosecutor. 

It  will  be  contended  that  the  aboHtion  of  the  plea  of  guilty 
from  our  procedure  will  increase  greatly,  and  to  a  considerable 
extent  unnecessarily,  the  work  of  our  criminal  courts.  But 
this  increase  will  after  all  be  comparatively  small,  because  the 
statement  of  the  defendant  that  he  is  guilty  will  be  taken 
as  testimony,  as  in  European  Continental  procedure.  This 
testimony  will  ordinarily  be  accepted  as  conclusive  evidence 
of  guilt,  and  will,  therefore,  greatly  shorten  and  simplify  the 
trial. 

In  some  cases,  however,  the  trial  would  prove  that  this  testi- 
mony is  not  true.  Insanity  or  a  delusion  will  sometimes  make  a 
defendant  think  himself  guilty  when  he  is  innocent.  In  other 
cases  a  defendant  will  for  a  hidden  motive  testify  that  he  is 
guilty  when  he  knows  that  he  is  innocent.  Men  have  been 
known  to  plead  guilty  to  crimes  of  which  they  were  innocent 
in  order  to  shield  the  reputation  of  women  whom  they  loved. 
In  most  of  these  cases  a  trial  would  reveal  the  falsity  of  this 
testimony,  and  would  prevent  the  punishment  of  an  innocent 
person,  while  in  all  cases  a  trial  would  furnish  a  better  basis  for 
the  individualization  of  penal  treatment  by  revealing  more 
fully  the  character  and  past  record  of  the  criminal. 

Significance  of  Public  Defense  for  a  Scientific  Criminal 
Procedure 

But  public  defense  is  also  of  the  utmost  significance  for  the 
development  of  a  new  system  of  criminal  procedure  in  which 
public  defense  will  not  only  safeguard  the  innocent  from  con- 
viction, but  will  also  materially  influence  the  treatment  of  the 
convicted.  One  of  the  fundamental  principles  of  this  new  pro- 
cedure will  be  the  individualization  of  punishment.  In  order  to 
individualize  penal  treatment  wisely  it  is  necessary  that  those 
who  conduct  criminal  procedure  shall  be  able  to  estimate  at 
their  true  value  the  facts  which  are  accumulated  with  regard  to 


3IO  CRIMINOLOGY 

the  persons  who  are  tried  and  convicted.  It  is,  therefore,  abso- 
lutely essential  that  the  prosecutor  and  defender  who  accumu- 
late and  present  the  evidence  shall  recognize  the  facts  which  are 
significant,  and  shall  present  them  intelligently,  thus  making  the 
trial  a  basis  for  individualization. 

In  order  to  accomplish  this  end  the  prosecutors  and  defenders 
should  be  trained  in  criminal  anthropology  and  sociology, 
psychiatry,  and  penology.  So  long  as  private  defense  exists,  it 
will  be  impossible  to  require  this  training  of  the  defenders,  for 
under  a  system  of  private  defense  it  is  possible  to  retain  any 
lawyer  for  the  defense,  even  one  who  usually  practises  in  the 
civil  courts.  But  under  a  system  of  public  defense  it  would  be 
possible  to  give  both  prosecutors  and  defenders  a  thorough 
training.  This  training  would  begin  with  the  study  of  the 
sciences  mentioned  above,  in  addition  to  the  usual  legal  training, 
by  those  who  wish  to  fit  themselves  for  criminal  practise.  In  a 
number  of  European  Continental  law  schools  such  courses  have 
already  been  introduced  for  those  who  expect  to  specialize  in 
criminal  practise.  If  public  defense  existed,  it  would  be  possible 
to  make  these  courses  obligatory.  The  theoretical  study  in  the 
law  school  would  be  supplemented  by  practical  study,  first  in 
connection  with  the  police,  where  the  student  would  become 
acquainted  with  the  methods  of  pursuing  the  criminal,  and 
would  assist  in  the  work  of  gathering  and  classifying  evidence. 
Next  the  student  would  spend  a  period  of  time  in  the  prisons 
in  the  study  of  penological  methods  and  of  the  criminals  them- 
selves. 

After  this  clinical  study  he  would  be  prepared  to  enter  criminal 
practise  either  as  a  public  prosecutor  or  as  a  public  defender.  It 
would  probably  be  advisable,  in  order  to  avoid  any  bias  whatso- 
ever against  the  defendant,  that  the  young  advocate's  first 
duties  should  be  as  a  defender.  But  a  period  of  service  cs 
defender  should  be  followed  by  a  similar  period  of  service  as 
prosecutor,  and  this  alternation  between  the  two  offices  shoulc. 
be  continued.  This  interchange  between  the  personnel  of  the 
prosecution  and  of  the  defense  would  give  a  wide  experience  to 
all  of  the  members  of  the  criminal  bar,  and  would  avert  the  bias 
which  now  tends  to  develop  either  for  or  against  the  defendant 
through  exclusive  work  either  for  the  defense  or  for  the  pros- 
ecution. 


PUBLIC  DEFENSE  IN  CRIMINAL  TRIALS  3II 

But  this  special  training  for  criminal  practise,  which  would  be 
made  feasible  by  the  introduction  of  public  defense,  is  of  the 
utmost  importance  for  still  another  reason.  From  the  ranks  of 
the  public  prosecutors  and  defenders  should  be  recruited  the 
judges  for  the  criminal  bench.  These  judges  would  be  much 
better  prepared  to  perform  their  important  social  functions 
than  the  members  of  the  criminal  bench  of  today.  The  study 
of  law  and  of  social  science  would  enable  them  to  appreciate 
much  better  the  relation  between  society  and  the  criminal,  and 
to  understand  the  significance  of  crime  in  the  social  economy. 
The  study  of  the  scientific  methods  of  gathering  evidence,  the 
psychology  of  testimony,  the  law  of  evidence,  and  the  technical 
rules  of  procedure  would  render  them  much  more  competent  to 
judge  as  to  the  commission  of  crime.  The  study  of  the  biological, 
psychological,  and  social  causes  of  crime  and  the  scientific 
methods  of  penal  treatment  would  enable  them  to  prescribe 
treatment  for  the  criminal  much  more  wisely.  This  preliminary 
theoretical  education  would  be  supplemented  by  an  extensive 
and  varied  practical  experience  in  connection  with  the  police, 
in  the  prisons,  and  in  the  different  branches  of  criminal  pro- 
cedure. 

These  judges  would  be  able  to  gather  many  scientific  facts 
whose  significance  the  judges  of  today  are  not  even  capable  of 
recognizing.  These  facts  will  have  great  value  in  developing 
the  science  of  criminology,  and  in  increasing  its  applications  to 
procedure.  Upon  the  decisions  of  these  judges  will  be  based  a 
system  of  jurisprudence  which,  though  it  can  never  be  as  precise 
in  an  arbitrary  manner  as  a  jurisprudence  based  entirely  upon 
a  penal  code,  will  nevertheless  be  more  scientific  than,  an  ar- 
bitrary penal  code,  and  will  therefore  increase  the  wisdom  and 
certainty  of  decisions  as  time  goes  by. 

Under  the  new  system  of  criminal  procedure  which  would 
grow  out  of  public  defense  it  would  no  longer  be  feasible  to 
elect  to  office  public  prosecutors  and  criminal  judges,  as  is 
customary  today.  In  the  olden  days  when  the  power  of  kings 
and  of  the  aristocratic  class  was  still  great,  the  election  of  judges 
was  a  valuable  guarantee  of  popular  rights.  But  in  our  modern 
democracies  such  a  guarantee  is  no  longer  necessary.  If  the 
criminal  bar  and  bench  is  to  become  a  special  profession,  it  is 
essential  that  the  tenure  of  office  should  be  more  or  less  per- 


312  CRIMINOLOGY 

manent.  Sufficient  control  over  this  profession  could  be  exer- 
cized in  most  cases  by  a  board  of  discipline  composed  of  high 
executive,  legislative,  and  judicial  officials.  Inasmuch  as  it 
would  represent  all  branches  of  the  government,  such  a  board 
would  be  impartial  when  exercizing  its  power  over  the  judiciary. 
Public  impeachment  could  be  used  as  a  control  in  extreme  cases. 
Hence  it  is  that  public  defense  would  make  possible  the 
development  of  a  new  system  of  criminal  procedure  in  which 
the  criminal  bar  and  bench  would  receive  special  training,  and 
would  be  appointed  to  office  according  to  a  merit  system.  In 
this  new  system  the  largest  possible  use  would  be  made  of  the 
data  and  inductions  of  criminological  science,  thus  making  the 
trial  a  much  better  basis  for  the  individualization  of  punishment. 

Public  Defense  and  the  Contradictory  Debate 

An  apparently  serious  objection  which  is  raised  against  public 
defense  is  that  if  both  prosecution  and  defense  are  to  be  con- 
ducted by  public  officials,  the  opposition  between  the  two  sides 
might  as  well  be  abolished,  and  the  trial  be  conducted  by  one 
group  of  officials  representing  the  state  who  will  judge  impar- 
tially. To  many  persons  it  seems  anomalous  that  the  state 
should  prosecute  and  defend  at  the  same  time.  But  this  appar- 
ent inconsistency  does  not  in  reality  exist.  On  the  contrary  it 
has  been  amply  demonstrated  in  this  book  that  the  functions 
of  criminal  procedure  are  social.  Consequently,  both  prosecu- 
tion and  defense  are  social  functions,  and  in  the  long  run  rep- 
resent the  same  social  interests.  So  that  there  is  no  contradic- 
tion of  interests  between  public  prosecution  and  public  defense. 

I  have  already  shown  that  the  procedure  of  investigation  was 
based  upon  the  principle  of  social  defense  against  crime,  and 
that  the  trial  in  this  t)rpe  of  procedure  was  supposed  to  be  an 
impartial  examination.  Later  for  practical  reasons  the  contra- 
dictory feature  of  the  procedure  of  accusation  was  introduced 
into  a  procedure  based  upon  a  principle  similar  to  that  of  the 
procedure  of  investigation.  The  partizan  trial  has  practical 
utility  because  it  is  useful  for  the  presentation  and  exposition  of 
evidence,  and  for  arriving  at  a  decision.  It  is  hardly  possible 
for  a  single  mind  to  go  over  all  of  the  facts  in  a  case  and  arrive  at 
a  definite  conclusion  when  these  facts  are  complex  and  are  not 


PUBLIC  DEFENSE   IN   CRIMINAL  TRIALS  313 

sufficiently  complete  to  afford  scientific  accuracy,  as  is  often  the 
case  in  criminal  trials.^  It  is,  therefore,  necessary  to  have  the 
evidence  on  each  side  presented  in  as  striking  a  manner  as  pos- 
sible to  the  unbiased  minds  of  the  judge  and  jury,  in  order  that 
they  may  weigh  the  evidence  quickly  and  come  to  a  decision. 
By  making  the  opposing  sides  in  the  partizan  trial  equal  in 
ability,  as  would  be  the  case  with  public  prosecution  and  public 
defense,  the  tendency  of  advocates  to  be  prejudiced  would  be 
neutralized. 

However,  if  a  better  method  of  presenting  evidence  and  of 
arriving  at  a  decision  than  the  partizan  trial  is  devized,  it  may 
become  possible  to  abolish  the  partizan  trial  and  prosecution 
and  defense  from  criminal  procedure.  The  trial  of  today  is  still 
too  much  of  a  forensic  duel  in  which  the  principal  question  is  as 
to  who  will  win.  The  true  functions  of  a  trial  are  to  reveal  ev- 
idence and  to  arrive  at  a  practical  conclusion.  To  perform  these 
functions  well  it  is  necessary  to  strengthen  those  elements  in  our 
criminal  courts  which  desire  primarily  the  investigation  of 
truth,  and  not  those  which  are  interested  solely  in  winning  a 
case.  Public  defense  will  tend  in  this  direction  by  lessening  a 
counsel's  personal  interest  in  one  side  of  a  case,  by  averting  the 
development  through  habit  of  a  bias  on  one  side,  and  by  in- 
creasing by  means  of  special  training  a  counsel's  ability  to  recog- 
nize what  is  significant  and  true  in  the  evidence.  Eventually 
public  defense  may  lead  to  the  abolition  of  the  contradictory 
debate  from  criminal  procedure. 

Within  the  last  few  years  public  defenders  have  been  ap- 
pointed in  several  places  in  this  country.^  But  nowhere  as  yet, 
in  this  country  or  elsewhere  in  the  world,  has  there  been  estab- 
lished a  system  of  public  defense  such  as  has  been  outlined  in  the 

*C/.  E.  Ferri,  Criminal  Sociology,  Boston,  1917,  p.  472. 

'Public  defenders  were  appointed  in  Oklahoma  in  1Q12,  in  Los  Angeles, 
Cal.,  in  1914,  in  Portland,  Ore.,  in  1915,  in  Omaha,  Neb.,  in  1915,  in  Pitts- 
burg, Penn.,  in  1915,  in  Columbus,  Ohio,  in  1915,  etc.  (See  the  Report  of 
the  Law  Reform  Commiltee  ol  the  Association  of  the  Bar  of  the  City  of  New 
York  on  The  Necessity  and  Advisability  of  Creating  the  Office  of  Public  De- 
fender, New  York,  1915,  pp.  4-10;  M.  C.  Goldman,  TIte  Public  Defender, 
New  York,  191 7,  pp.  81-84.) 

Free  defense  for  poor  defendants  is  furnished  by  many  philanthropic  or- 
ganizations and  private  individuals,  while  in  a  number  of  cities  so-called 
"voluntary"  public  defenders  have  been  appointed. 


314  CRIMINOLOGY 

preceding  pages.  The  forms  of  public  defense  now  in  existence 
bear  only  a  remote  resemblance  to  the  system  of  public  defense 
which  I  have  described.  It  will  doubtless  be  impossible  to  in- 
troduce a  thoroughgoing  system  of  public  defense  until  crim- 
inological principles  are  much  more  widely  known  than  is  the 
case  at  present. 

Free  Civil  Justice 

The  logical  sequel  to  public  defense  is  free  civil  justice;  that  is 
to  say,  the  employment  of  attorneys  by  the  public  for  the  plead- 
ing and  defense  of  civil  cases.  There  is  no  more  equality  before 
the  law  for  rich  and  poor  in  the  civil  courts  than  there  is  in  the 
criminal  courts,  because  a  decision  in  favor  of  the  plaintiff  or 
the  defendant  in  a  civil  suit,  however  much  in  the  right  he  may 
be,  depends  largely  upon  his  ability  to  secure  efficient  counsel. 
There  will  not  be  justice  for  all  until  both  criminal  and  civil 
procedure  are  made  free. 

It  will  be  contended  that  free  civil  justice  would  stimulate 
an  excessive  amount  of  litigation.  This  will  probably  be  the 
case  at  first,  but  measures  can  and  will  be  devized  to  prevent 
unnecessary  litigation  by  imposing  penalties  upon  the  losing 
side  in  civil  suits,  as,  for  example,  the  payment  of  costs,  when- 
ever the  court  decides  that  the  plaintifif  did  not  have  adequate 
reason  for  bringing  suit,  or  was  not  prompted  by  a  genuine  sense 
of  justice  in  doing  so.  In  the  long  run,  free  civil  justice  would 
probably  cause  less  work  for  the  courts  than  the  present  system, 
because  much  time  would  be  saved  which  is  now  wasted  by 
private  counsel  over  technicalities  in  order  to  increase  the  size 
of  their  fees.  Furthermore,  free  civil  justice  would  prevent  a 
certain  amount  of  crime  which  is  now  caused  by  the  lack  of 
financial  resources  for  the  bringing  of  civil  suits,  and  by  the  slow 
administration  of  justice  in  the  civil  courts.  It  sometimes  hap- 
pens that  a  person  who  is  unable  to  seek  justice  through  the 
courts,  or  who  has  been  foiled  in  the  attempt  to  secure  it  in  a 
legal  manner,  will  resort  to  criminal  methods  for  the  purpose  of 
securing  this  justice. 

It  will  also  be  contended  that  public  defense  and  free  civil 
justice  will  require  a  large  expenditure  on  the  part  of  the  state. 
In  all  probability  the  state  will  be  more  than  recompensed  in 


PUBLIC  DEFENSE  IN  CRIMINAL   TRIALS  315 

the  long  run  for  this  expenditure  by  the  diminution  in  the 
amount  of  crime  and  other  forms  of  social  friction  which  will 
result  from  free  criminal  and  civil  justice.  But  in  any  case  this 
expenditure  is  fully  justified  as  a  means  of  bringing  about  an 
equalization  of  justice  for  rich  and  poor  and  of  socializing  crim- 
inal and  civil  procedure.  Justice  is  a  fundamental  human  right, 
and  there  are  few  if  any  functions  of  a  state  which  are  more  im- 
portant than  that  of  securing  justice  for  its  citizens. 


CHAPTER  XX 
THE  JUDICIAL  FUNCTION 

The  English  jury  —  The  characteristics  of  jurors  —  Criticisms  of  the  Jury  — 
The  functions  of  the  judge  —  The  training  and  appointment  of  judges 
—  The  control  of  the  judiciary. 

The  jury  is  a  very  ancient  institution.  Under  the  Mosaic 
law  the  elders  performed  this  judicial  function.  In  ancient 
Athens  this  function  was  performed  by  the  Hdiastes.  The 
Roman  jury  oi  jtidices  jurati  had  jiu-isdiction  only  in  civil  cases. 
Among  the  Teutonic  tribes  the  citizens  had  the  power  of  judg- 
ing. The  feudal  jury  was  composed  of  the  peers  of  the  accused. 
So  that  the  custom  of  deciding  legal  cases  by  means  of  a  body 
of  men  other  than  professional  judges  who  are  sworn  to  judge 
the  evidence  has  been  widespread  in  the  past. 

The  English  Jury 

The  t)T)e  of  jury  now  in  use  developed  in  England.  It  is 
difficult  to  ascertain  the  origin  of  the  English  jury.  One  theory 
is  that  it  came  from  the  ancient  Scandinavian  jury  through  the 
Danish  jury.  Another  theory  is  that  it  came  from  the  judicial 
assemblies  of  the  Saxons.  But  wherever  it  may  have  originated, 
it  was  much  influenced  in  its  development  by  a  form  of  jury  in- 
troduced into  England  at  the  time  of  the  Norman  conquest 
from  the  procedure  of  inquiry  in  the  ancient  French  law  known 
as  the  inquisitio.  In  this  procedure  the  judge  summoned  a 
number  of  citizens,  not  definitely  fixed,  worthy  of  confidence  and 
acquainted  with  the  facts,  and  after  administering  the  oath  to 
them  asked  them  for  their  opinion. 

Henry  II,  Duke  of  Normandy,  made  the  inquisitio  an  organic 
part  of  the  Norman  law,  so  that  under  certain  conditions  it 
could  be  demanded  in  any  criminal  case.  When  Henry  went  to 
the  throne  of  England  as  its  conqueror,  this  method  of  proof 
was  introduced  as  the  recognitio  d'assisa.    It  extended  at  first 


THE  JUDICIAL  FUNCTION  '  317 

only  to  questions  of  property  (magna  assisa)  and  of  possession 
(parva  assisa). 

At  first  the  jurors  in  the  English  jury  were  merely  witnesses 
whose  duty  it  was  to  testify  from  personal  knowledge,  and  some- 
times to  offer  an  opinion.  Later  they  acquired  the  power  to 
judge  as  well  as  to  testify,  and  in  course  of  time  ceased  to  be 
witnesses. 

The  jury  of  denunciation  appears  to  have  been  established  by 
Henry  II  about  the  year  1164  A.  D.  (Constitution  of  Clarendon, 
10  Hen.  II),  though  it  is  possible  that  it  had  existed  previously 
among  the  Saxons.  This  form  of  jury  later  became  a  jury  of 
accusation,  now  known  as  the  grand  jury.  The  coroner's  jury, 
which  was  established  originally  to  investigate  shipwrecks, 
treasure- trove,  etc.,  acquired  the  functions  of  investigating 
violent  deaths,  and  of  making  accusations  when  it  saw  fit.  Up 
to  the  reign  of  Edward  III  the  same  persons  could  constitute 
the  jury  of  accusation  and  the  jury  of  judgment,  but  since  that 
time  this  has  become  impossible. 

From  England  the  jury  was  carried  to  America,  where  it  is 
used  among  Anglo-Saxon  peoples  almost  if  not  quite  as  exten- 
sively as  in  England.  The  English  jury  did  not  go  to  the  Eu- 
ropean Continent  until  the  time  of  the  French  Revolution. 
The  use  of  torture  as  a  mode  of  proof  was  abolished  at  that 
time,  and  the  introduction  of  the  jury  was  in  harmony  with  the 
democratic  spirit  of  the  times.  From  France  the  jury  spread 
to  most  of  the  countries  of  Europe. 

As  I  have  already  stated  in  Chapter  XVIII,  the  coroner's 
jury  is  being  replaced  by  medico-legal  experts.  The  grand  jury 
also  is  rapidly  being  superseded  in  its  functions  of  examination 
by  the  examining  magistrate,  who  can  do  this  work  much  more 
efficiently.  In  several  of  the  American  States  a  grand  jury  is 
summoned  only  for  exceptional  cases,  as  when  political  cor- 
ruption has  been  widespread.  We  shall  therefore  devote  all 
of  our  attention  to  the  jury  of  judgment,  or  petit  jury. 

The  Characteristics  of  Jurors 

The  jury  is  based  upon  certain  principles  which  have  been 
gradually  formulated  in  the  course  of  its  history,  and  which 
are  always  used  as  arguments  in  its  favor.    The  jury  is  regarded 


3l8  CRIMINOLOGY 

as  the  "bulwark"  or  "advance  guard"  of  liberty,  because  it 
is  supposed  to  protect  the  rights  and  liberties  of  the  people 
against  encroachments  by  the  central  power.  It  represents 
public  opinion,  and  keeps  the  professional  judges  and  the  courts 
in  touch  with  the  public  conscience.  It  is  a  school  of  citizenship. 
It  is  entirely  independent,  and  is  therefore  not  responsible  to 
the  central  authorities.  Its  naive  conscience,  unsophisticated 
in  the  law,  furnishes  the  best  method  of  judging  evidence. 
Its  moral  judgment  serves  as  a  corrective  for  the  laws.  A  con- 
sideration of  the  salient  traits  of  the  jury  will  indicate  the  value 
of  these  arguments  in  its  favor. 

The  machinery  by  means  of  which  jurors  are  chosen  varies 
more  or  less  from  place  to  place.  It  is,  however,  almost  invari- 
ably the  custom  to  exclude  manual  and  day  laborers.  Many 
professional  men,  also,  such  as  doctors,  teachers,  lawyers,  clergy- 
men, etc.,  are  excluded,  as  well  as  many  persons  in  the  upper 
classes.  So  tha,t  the  tendency  is  to  exclude  the  lowest  and  the 
upper  classes.  ^»The  standard  of  intelligence  of  the  jury  is, 
therefore,  at  best  mediocre.  )i(^ 

It  is  difl&cult  for  most  jurors  to  perform  jury  service.  It  is  not 
easy  for  a  merchant  or  farmer  to  leave  his  work,  and  the  fees 
are  not  usually  sufficient  to  pay  for  the  loss  of  time.  For  this 
reason  many  jurors  endeavor  to  be  excused  at  the  beginning 
of  their  term  of  service.  Sometimes,  indeed,  a  juror  will  induce 
a  lawyer  to  challenge  him  in  order  to  be  relieved  from  serving 
on  a  jury.  On  the  other  hand,  certain  jurors  are  anxious  to 
serve,  some  of  them  in  order  to  acquire  a  reputation  in  their 
neighborhood,  others  of  them  in  order  to  secure  the  fees.  The 
latter  ordinarily  belong  to  a  low  type  of  juror. 

The  jurors  are  usually  inspired  by  a  sincere  desire  to  do  their 
duty,  provided  they  are  not  disturbed  by  external  influences. 
A  juror  ordinarily  feels  the  responsibility  of  his  position,  and 
is  desirous  of  filling  it  well.  When  he  sees  the  accused  before 
him,  a  humanitarian  feeling  leads  him  to  want  to  do  justice. 

But  jurors  are  greatly  hampered  by  their  ignorance.  They 
are  ignorant,  as  a  rule,  of  legal  procedure  and  documents.  Ex- 
perience is  necessary  to  be  able  to  separate  significant  from  in- 
significant details  in  the  evidence,  and  this  experience  most 
jurors  lack.  Furthermore,  jurors  know  little  or  nothing  about 
crime  and  criminals.    They  have  not  even  the  empirical  knowl- 


THE  JUDICIAL  FUNCTION  319 

edge  that  professional  judges  and  lawyers  acquire,  to  say  noth- 
ing of  a  knowledge  of  criminology. 

This  ignorance  will  frequently  disquiet  a  juror,  and  he  will 
go  in  search  of  information.  But  little  information  is  to  be  had. 
In  England  books  of  instruction  to  jurors  are  published  which  a 
juror  may  read,  and  in  France  a  vague  printed  statement  is  given 
to  jurors  which  furnishes  little  enlightenment.  Consequently, 
most  of  the  information  of  a  juror  is  of  a  haphazard  sort, 
much  of  it  coming  sometimes  from  a  court  attendant.  This 
ignorance  tends  to  develop  a  suspicious  attitude  on  the  part 
of  the  juror  towards  all  those  concerned  in  the  trial,  towards 
the  judge  whose  exalted  position  puts  a  barrier  between  the 
juror  who  is  a  judge  of  circumstance  and  the  judge  of  profession, 
towards  the  lawyers  on  account  of  their  partizan  position,  etc. 

Many  influences  act  upon  a  juror  in  the  course  of  a  trial. 
Perhaps  the  principal  influence  is  that  exerted  by  the  lawyers. 
On  account  of  the  ignorance  of  jurors  a  skillful  lawyer  can  fre- 
quently deceive  them  as  to  the  true  significance  of  evidence. 
Consequently,  cases  are  often  determined  by  the  respective 
ability  of  the  opposing  lawyers  to  accomplish  this  deception, 
and  not  upon  the  merits  of  the  case.  Owing  to  the  influence 
which  counsel  have  over  jurors,  they  will  indulge  in  much  ora- 
tory and  claptrap  in  every  trial  in  which  there  is  a  jury,  thus 
lowering  greatly  the  intellectual  standard  of  the  trial. 

The  judge  has  a  good  deal  of  influence  over  the  jurors.  The 
jury  is  influenced  by  its  general' impression  of  the  judge.  If  it  is 
pleased  with  the  judge,  it  will  usually  do  what  it  thinks  will 
please  him.  But  if  it  loses  confidence  in  the  judge  on  account 
of  a  mistake  made  by  him,  or  if  it  is  displeased  with  his  per- 
sonality, it  will  oppose  him  as  much  as  possible,  owing  to  its 
distrust  or  dislike. 

In  England  the  jury  has  much  confidence  in  the  judge,  and  the 
summing  up  of  the  judge  is  likely  to  influence  the  jury  greatly. 
In  France  and  elsewhere  on  the  European  Continent  the  sum- 
ming up  by  the  judge  has  been  abolished,  because  it  was  be- 
lieved that  it  influenced  the  jury  too  much.  This  was  probably 
due  to  the  tendency  of  the  Continental  judge  to  be  partial  to 
the  prosecution.  But  the  Continental  judge  is  sometimes  able 
to  influence  the  jury  in  another  way.  In  Continental  procedure 
the  jury  may  call  the  presiding  judge  to  its  council  chamber 


320  CRIMINOLOGY 

in  order  to  consult  with  him  and  to  ask  his  advice.  Under  these 
circumstances  the  judge  is  able  frequently,  if  he  wishes,  to  in- 
fluence the  jury  considerably.  This  is  manifestly  wrong,  and 
if  the  judge  is  to  meet  the  jury  at  all  it  should  be  in  the  presence 
of  the  plaintiff,  defendant,  and  counsel  for  the  defendant. 

The  jurors  may  be  greatly  influenced  by  the  appearance  and 
personality  of  the  defendant  or  plaintiff.  For  example,  in  the 
trial  of  a  crime  of  passion  the  jury  may  be  moved  by  the  per- 
sonality of  the  defendant.  On  the  other  hand,  in  the  trial  of  a 
crime  against  the  person  the  sympathies  of  the  jury  may  go 
out  to  the  victim  of  the  crime  on  account  of  the  suffering  and 
injury  which  his  or  her  appearance  manifests.  The  influence 
of  the  personality  of  the  accused  over  the  jury  has  led  the  jury 
to  individualize  punishment  to  a  certain  extent,  though  this 
individualization  has  in  many  cases  not  been  on  a  rational  basis. 

The  press  and  the  public  sentiment  of  the  moment  have  much 
influence  over  the  jury.  Local  prejudices  influence  the  jury 
greatly  in  its  decisions.  For  example,  in  a  certain  community 
the  jury  will  always  be  more  than  usually  severe  upon  one  crime 
because  it  is  peculiarly  obnoxious  to  that  community,  while 
towards  another  crime  it  may  be  unusually  lenient. 

The  trade  or  profession  of  a  juror  is  likely  to  influence  him 
in  his  decisions  by  giving  him  a  peculiar  point  of  view.  The 
juror  may  have  heard  of  a  theory  of  criminality  which  he  will 
attempt  to  apply  in  an  unthinking  manner.  He  may  regard 
the  criminal  as  the  result  of  heredity,  as  the  fault  of  society, 
or  as  morally  free  and  therefore  entirely  responsible  for  his  acts, 
and,  consequently,  be  guided  in  his  decision  by  a  unilateral 
theory. 

A  fundamental  trait  of  the  juror  is  his  lack  of  a  power  of 
attention.  Not  being  accustomed  to  follow  the  proceedings 
of  a  court,  many  jurors  after  the  first  few  minutes  fall  into  a 
semi-conscious  state  of  revery  in  which  they  hear  little  of  the 
evidence  or  arguments.  Consequently,  the  important  points 
do  not  become  impressed  upon  their  minds,  especially  in  a  long 
trial.  Power  of  attention  to  legal  matters  can  be  developed 
only  through  training  and  attention.  It  is  a  noticeable  fact 
that  old  judges,  owing  to  their  longer  experience,  usually  have 
at  the  end  of  a  trial  a  fresher  attention  than  young  judges. 

Cases  may  be  classified  according  to  their  relative  influence 


THE   JUDICIAL  FUNCTION  321 

upon  the  jury  into  those  in  which  the  crime  has  the  most  influ- 
ence, and  those  in  which  the  accused  has  the  most  influence. 
An  illustration  of  the  first  type  would  be  a  larceny  or  forgery 
coming  before  a  jury  composed  largely  or  wholly  of  merchants, 
who  would  be  severe  on  this  kind  of  crime.  An  example  of  the 
second  type  would  be  a  criminal  of  passion  whose  personality 
would  appeal  strongly  to  the  jury.  In  the  latter  case  the  jury 
would  tend  to  individualize,  but  not  so  in  the  former  case. 

Criticisms  of  the  Jury 

The  contradictory  debate  varies  in  different  countries  accord- 
ing to  the  nature  of  the  people.  In  France  the  tendency  is  to 
appeal  to  the  passions.  In  England  the  tendency  is  towards 
excessive  casuistry.  But  everywhere  an  oratorical  character 
is  given  to  the  debate,  and  much  sentimental  claptrap  is  intro- 
duced because  sentiment  predominates  over  reason  in  the  jury. 
The  result  is  that  the  debate  tends  to  confuse  the  jury  as  to 
the  main  points  at  issue  by  obscuring  them. 

After  the  debate  comes  the  summing  up  or  charge  to  the 
jury  of  the  judge,  in  which  he  states  the  juridical  aspects  of  the 
questions  at  stake  and  reviews  the  main  features  of  the  evidence. 
A  sober  presentation  of  these  facts  by  the  judge  has,  as  a  rule, 
a  beneficial  effect  upon  the  jury,  though  this  summing  up  has 
been  abolished  in  France  and  elsewhere  on  the  European  Conti- 
nent on  account  of  the  danger  of  the  judge  being  partial  to  the 
prosecution. 

After  the  charge  from  the  judge  the  jury  retires  to  deliberate, 
unless  they  are  able  to  make  a  decision  immediately.  The 
tendency  is  for  the  jury  to  break  up  at  first  into  knots  of  two 
or  three,  discussing  the  questions  at  issue  rather  incoherently. 
Then,  as  the  distinctly  formulated  opinions  begin  to  appear, 
the  discussion  becomes  more  general  with  the  exponents  of 
these  opinions  dominating,  the  others  remaining  more  or  less 
silent.  Sometimes,  in  accordance  with  the  psychology  of  crowds, 
a  single  person  dominates  the  remainder  of  the  jury.  This 
leader  is  not  necessarily  the  most  intelligent  member  of  the 
jury,  but  has  the  most  stubborn  will  by  means  of  which  he 
overbears  the  convictions  of  the  others.  He  is  assisted  in  ac- 
complishing his  purpose  in  England  and  America  by  the  neces- 


322  CRIMINOLOGY 

sity  of  arriving  at  a  unanimous  decision.  On  the  European 
Continent  only  a  majority  is  required,  thus  permitting  of  dif- 
ferences of  opinion. 

During  their  deliberations  the  jury  may  be  influenced  by 
the  judge,  especially  on  the  European  Continent  where  he 
meets  the  jury  alone.  The  jurors  are  usually  kept  carefully 
secluded  from  the  public  during  their  deliberations,  though  in 
some  European  countries  they  are  permitted  to  go  out  in  the 
intervals  of  their  deliberations.  This  is  manifestly  wrong, 
since  it  may  result  in  bribery  and  other  forms  of  corruption. 
The  decision  of  a  jury  is  final,  since  there  is  no  way  of  appealing 
from  it. 

There  is  little  guarantee  of  the  incorruptibility  of  a  jury, 
since  the  giving  of  a  bribe  can  be  detected  with  great  difficulty. 
The  juror  can  accept  a  bribe  with  little  danger,  since  he  is  to 
return  to  private  life  very  soon,  and  has  no  public  reputation 
as  a  judge  to  sustain. 

The  jury  is  not  always  a  safeguard  of  the  people's  rights  and 
liberties  against  the  encroachment  of  a  despot  or  other  central 
authority.  On  the  contrary,  history  shows  us  that,  owing  to 
corruption  and  intimidation,  the  jury  has  often  been  weakest 
when  the  central  power  was  most  tyrannical.  So  that  the  jury 
cannot  be  regarded  as  a  universal  Palladium  of  liberty,  as  it  is 
sometimes  called.  ^ 

1  Stephen,  though  an  advocate  of  the  jury  system,  has  admitted  its  weak- 
ness in  the  face  of  tyrannical  power:  "They  (juries)  are  also  capable  of  being 
intimidated,  as  the  experience  of  Ireland  has  abundantly  shown.  Intimida- 
tion has  never  been  systematically  practiced  in  England  in  modern  times, 
but  I  believe  it  would  be  just  as  easy  and  just  as  effective  here  as  it  has  been 
shown  to  be  in  Ireland.  Under  the  Plantagenets,  and  down  to  the  estab- 
lishment of  the  court  of  Star  Chamber  trial  by  jury  was  so  weak  in  Eng- 
land as  to  cause  something  like  a  general  paralysis  of  the  administration  of 
justice.  Under  Charles  II  it  was  a  blind  and  cruel  system.  Under  part  of 
the  reign  of  George  III  it  was,  to  say  the  least,  quite  as  severe  as  the  severest 
judge  without  a  jury  could  ever  have  been.  The  Revolutionary  tribunal 
during  the  Reign  of  Terror  tried  by  a  jury."  (J.  F.  Stephen,  A  History  of 
the  Criminal  Law  of  England,  London,  1883,  Vol.  I,  p.  569.) 

The  jury  has  failed  to  resist  every  kind  of  tyranny,  even  that  of  the  peo- 
ple. "In  England  in  the  sixteenth  and  seventeenth  centuries,  in  France 
during  the  Revolution  and  the  Restoration,  the  jury  has  nearly  always  been 
the  faithful  servant  of  the  most  powerful;  it  has  succumbed  to  all  kinds  of 
tyrannies,  to  that  of  the  throne  as  well  as  that  of  the  populace."  (R.  Garo- 
falo.  La  Criminologie,  Paris,  1905,  p.  396.)  See  also  T.  W.  Earle,  The  Jury 
Laws  and  Their  Amendment,  London,  1882,  pp.  1 21-123. 


THE   JUDICIAL   FUNCTION  323 

The  power  of  the  jury  to  correct  the  law  is  in  many  ways 
a  danger.  One  of  the  underlying  principles  of  the  jury 
is  that  its  moral  judgment  acts  as  a  corrective  of  the  law.  It 
is  true  that  the  jury  has  at  times  served  a  useful  purpose 
by  relieving  the  rigidity  or  arbitrariness  of  a  law  in  its  ap- 
plication, or  by  condemning  a  law  by  refusing  to  enforce  it. 
An  example  of  its  utility  for  this  purpose  is  the  way  in  which 
the  jury  has  stimulated  the  individualization  of  punish- 
ment. 

But  the  question  may  be  raised  whether  the  reform  of  the 
law  should  belong  to  a  judicial  body,  since  the  result  is  a  con- 
fusion of  legislative  and  judicial  functions.  By  refusing  to 
enforce  a  law  the  jury  makes  it  a  dead  letter.  This  power  of 
the  jury  tends  to  discourage  the  zeal  of  those  who  are  trying 
to  promote  legislative  reform.  Furthermore,  it  encourages 
the  transgression  of  the  laws  by  lessening  their  value  in  the 
public  esteem.  It  is  true  that  there  are  some  bad  laws  which 
are  not  worthy  of  enforcement.  It  is  also  true  that  in  a  day 
when  the  people  had  little  or  no  legislative  power,  it  may  have 
been  justifiable  to  give  the  jury  legislative  functions.  But 
this  is  no  longer  necessary  under  the  present  democratic  regime, 
and  a  better  means  of  abolishing  bad  laws  should  be  de- 
vized. 

The  present  distinction  between  law  and  fact  caused  inco- 
herence of  action  on  the  part  of  the  jury.  It  is  supposed  to  be 
a  judge  of  facts  alone.  But  it  cannot  avoid  being  influenced 
by  the  personality  of  the  accused,  and  taking  into  consideration 
the  penal  consequences  of  its  verdict,  which  is  a  matter  of  law. 
As  its  knowledge  of  the  law  is  exceedingly  vague,  it  cannot  give 
an  exact  expression  of  its  opinion  in  its  verdict.  Consequently, 
a  jury  will  sometimes  acquit  in  a  case  where  it  believes  that  the 
accused  is  guilty,  but  fears  that  the  penal  consequences  of  a 
verdict  of  guilty  will  be  heavier  than  the  accused  deserves.  The 
expedient  of  permitting  the  jury  to  designate  extenuating  cir- 
cumstances which  lessen  the  penalty  was  introduced  into  Eu- 
ropean Continental  procedure  largely  for  the  purpose  of  pre- 
venting these  acquittals. 

The  necessity  of  securing  a  unanimous  decision  in  English 
and  American  courts  frequently  causes  long  delays  and  great 
uncertainty.    A  unanimous  decision  is  required  for  the  protec- 


324  CRIMINOLOGY 

tion  of  the  accused,  in  order  that  he  shall  not  be  condemned 
unless  all  of  the  twelve  jurors  have  been  persuaded  of  his  guilt. 
But  there  are  probably  few  cases  in  which  the  decision  repre- 
sents a  real  unanimity.  In  many  cases  the  minority  yields  to 
the  majority  on  account  of  the  pressure  brought  to  bear  upon 
it  to  reach  a  decision.  Even  if  the  decision  is  not  to  be  by  a  bare 
majority,  as  on  the  European  Continent,  it  might  be  by  eight 
or  nine  out  of  twelve.  Already  in  some  of  the  American  States 
there  is  a  tendency  towards  this  reform,  as  where  in  criminal 
cases  less  grave  than  felonies  only  a  three-fourths  majority  is 
required  for  conviction. 

The  number  of  jurors  was  hit  upon  by  chance.  As  has  already 
been  noted,  jurors  were  originally  witnesses,  and  a  consider- 
able number  of  them  were  required  at  that  time.  A  large  number 
may  also  have  been  needed  in  the  past  in  order  to  give  the  jurors 
courage.  But  there  is  no  particular  reason  now  why  the  jury 
should  number  twelve.  A  smaller  number,  as,  for  example, 
seven,  would  be  much  less  expensive.  It  is  probable  also  that 
the  discussion  in  a  smaller  jury  would  be  more  coherent  and 
logical  than  in  a  larger  jury,  because  its  members  would  come 
into  closer  touch  with  each  other. 

A  system  similar  to  the  jury  system  is  that  in  which  a  small 
nmnber  of  citizens  sit  with  the  judge  as  lay  assessors,  and  judge 
both  fact  and  law.  In  France,  where  these  assessors  are  called 
tchevins,  there  are  a  few  courts  in  which  this  system  is  used, 
and  the  same  is  true  in  several  other  European  countries.  This 
system  is  used  most  of  all  in  Germany,  where  the  assessors  are 
known  as  schqffen. 

The  judge  sits  sometimes  with  two,  sometimes  with  four, 
sometimes  with  as  many  as  six  of  these  assessors.  Most  of  the 
less  important  crimes  in  Germany  are  tried  in  these  courts. 
The  lay  assessor  is  more  of  a  judge  than  the  juror,  because  he 
judges  questions  of  law  as  well  as  of  fact.  But  the  assessors 
are  said  to  be  more  or  less  incompetent,  and  tend  to  acquit 
in  the  cases  of  crimes  which  they  themselves  are  liable  to  com- 
mit. This  is  to  be  expected,  since  they  are  drawn  from  much 
the  same  classes  as  jurors.  However,  lieir  decisions  are  on  the 
whole  better  than  those  of  a  jury,  because  the  judge  presides 
over  their  deliberations.  Furthermore,  there  is  not  so  much 
delay  in  bringing  cases  to  trial  as  there  is  before  a  jury. 


THE   JUDICLA.L  FUNCTION  325 

The  jury  has  been  prohibited  from  judging  questions  of  law 
because  it  is  ignorant  of  the  law.  But  to  judge  a  question  of 
fact  is  frequently  more  difl5cult  than  to  judge  a  question  of  law, 
whether  it  be  a  question  of  evidence  or  of  the  guilt  of  a  person. 
A  judge  in  deciding  a  question  of  law  has  usually  a  limited 
number  of  solutions,  and  has  precedents  upon  which  to  base 
his  decision.  A  jury  has  no  precedents  and  no  system  of  juris- 
prudence upon  which  to  base  its  decisions,  and  there  are  fre- 
quently several  possible  solutions.  And  yet  it  takes  specialized 
knowledge  to  decide  these  questions  of  fact  just  as  speciaUza- 
tion  is  needed  for  deciding  questions  of  law,  and  it  is  the  prin- 
ciple of  specialization  that  the  jury  violates. 

I  have  already  described  the  influence  of  the  jury  upon 
the  English  law  of  evidence.  This  law  has  been  devized  largely 
for  the  purpose  of  protecting  the  jury  against  being  influenced 
by  unimportant  testimony.  Many  kinds  of  evidence  are  ex- 
cluded, such  as  hearsay  evidence,  notwithstanding  the  fact 
that  the  hearsay  evidence  or  opinion  of  a  person  of  good  intelli- 
gence and  character  may  be  worth  more  than  the  direct  evidence 
of  a  stupid  or  untruthful  person.  In  France  hearsay  evidence 
is  usually  judged  by  experienced  judges  who  are  capable  of 
separating  the  wheat  from  the  chaff,  and  who  are  not  hampered 
by  rules  of  evidence  and  case  law.  The  English  law  of  evidence, 
on  the  contrary,  increases  the  complexity  of  the  procedure, 
and  frequently  delays  its  action.  Were  it  not  for  the  jury  the 
law  of  evidence  could  be  much  simpler  and  less  rigid. 

It  is  sometimes  contended  in  behalf  of  the  jury  that  there  is 
a  connection  between  the  suffrage,  or  making  the  law,  and  serv- 
ing on  juries,  or  administering  the  law.  It  is  said  that  under 
a  democratic  regime  the  people  are  able  to  watch  over  the  ad- 
ministration of  the  laws  by  means  of  the  jury.  But  a  distinction 
should  be  made  between  electoral  right  and  judicial  function. 
The  jury  confuses  legislative  and  judicial  functions,  and  it  is 
probably  better  to  have  the  judicial  functions  performed  by 
judges  whose  education  and  intelligence  are  above  the  average, 
because  the  judicial  function  requires  specialized  knowledge 
which  is  not  necessary  for  the  electoral  right. 

As  a  school  of  citizenship  the  jury  disseminates  a  little  legal 
knowledge  among  the  public,  but  the  gain  in  this  direction  is 
scarcely  sufficient  to  pay  for  the  expense  and  trouble  it  causes 


326  CRIMINOLOGY 

the  jurors.  Furthermore,  constant  attempts  at  evasion  do  not 
make  the  jury  the  "best  means  of  inculcating  civic  duty"  in 
the  average  citizen.  By  codifying  the  law  and  by  educational 
means  a  knowledge  of  the  law  can  be  disseminated.  And  if 
the  jury  results  in  a  maladministration  of  justice,  its  utility 
for  educating  the  public  cannot  be  justified. 

Perhaps  the  principal  argument  in  favor  of  the  jury  is  that 
it  keeps  the  courts  and  justice  in  touch  with  the  public.  It 
keeps  the  professional  judge  informed  as  to  the  state  of  the 
public  conscience,  and  it  judges  according  to  the  prevailing 
standard  of  morality.^  There  may  be  a  few  practical  reasons 
for  keeping  justice  on  a  level  with  the  prevailing  moral  standard, 
in  order  to  keep  the  people  in  sympathy  with  the  courts.  Eut 
the  administration  of  justice  should  also  tend  to  raise  the  moral 
standard,  and  to  accomplish  this  it  should  be  superior,  as  far 
as  is  practicable,  to  the  ideas  and  prejudices  of  the  public. 

The  preceding  considerations  clearly  indicate  that  the  deci- 
sions of  juries  are  more  or  less  governed  by  chance.  The  jury 
system  violates  the  principle  of  the  division  of  labor,  which  is 
now  applied  in  nearly  every  sphere  of  human  activity,  because 
it  does  not  utilize  specialized  knowledge.  Science  can  play 
no  part  in  the  deliberations  of  juries,  only  common  sense  and 
rarely  ever  good  sense.  And  yet  the  use  of  scientific  methods 
of  judging  evidence  and  guilt  is  imperative.  This  necessity  is 
fatal  to  the  jury  system. 

The  jury  has  had  an  important  political  aspect  in  the  past. 
It  was  one  of  the  means  by  which  the  people  exercized  a  power 
in  the  government,  though  frequently  it  was  not  so  successful  in 
defending  the  people's  rights  and  liberties  as  is  usually  supposed. 
This  made  the  jury  a  political  as  well  as  a  judicial  institution. 
But  these  political  reasons  for  the  existence  of  the  jury  have 
little  importance  under  the  present  democratic  regime,  when 
the  people  have  a  large  legislative  power.  The  old  axiom  that  a 
man  should  be  tried  by  his  peers  has  httle  meaning  now  that  a 

^  "  From  their  position  in  life  its  members  are  likely  to  know  more  of  the 
parties  and  witnesses,  and  are  consequently  better  able  to  enter  into  their 
views  and  motives;  and  from  the  novelty  of  their  situation  they  bring  a 
freshness  and  earnestness  to  the  inquiry,  which  the  constant  habit  of  de- 
ciding, adjudicating  and  punishing  dims  and  blunts  more  or  less  in  the 
mind  of  every  judge."  (W.  M.  Best,  The  Principles  of  the  Law  of  Evidence, 
London,  1906,  loth  ed.,  p.  71.) 


THE  JUDICIAL  FUNCTION  327 

large  measure  of  political  equality  exists.  If  this  principle  were 
rigidly  applied  criminals  would  be  tried  by  criminals,  children 
by  children,  etc. 

Probably  the  sole  political  value  of  the  jury  today  is  for  the 
trial  of  political  crimes,  and  of  press  offenses  which  tend  to 
become  public  and  political  in  their  character.  It  is  true  that 
in  the  past  the  jury  has  frequently  been  either  servile  or  rebel 
in  political  cases.  But  this  will  probably  become  less  frequent 
in  the  future,  since  tyrannical  and  despotic  power  is  less  likely 
to  exist. 

It  is  evident,  therefore,  that  the  jury  will  be  abolished  even- 
tually in  most  criminal  cases.  This  makes  doubly  important 
the  subject  of  the  character  and  training  of  the  judges  who  are 
to  take  the  place  of  the  jury. 

The  Functions  of  the  Judge 

The  judge  holds  the  highest  rank  in  the  legal  hierarchy. 
Judicial  functions  were  originally  performed  by  the  chief  of  a 
tribe  or  the  king.  Later  they  were  delegated  by  him  to  judges 
who  frequently  were  priests.  These  judges  had  a  judicial  power 
equal  to  that  of  the  king.  At  first  they  were  not  restricted  by 
rules  of  procedure  or  penal  codes. 

In  the  two  typical  forms  of  procedure  the  judge  has  had  some- 
what dissimilar  functions.  In  the  procedure  of  accusation  the 
judge  was  an  arbiter  between  two  private  parties.  In  the  pro- 
cedure of  investigation  he  was  the  representative  of  society  whose 
duty  it  was  to  conserve  social  interests.  When  public  prosecu- 
tion was  introduced  into  the  systems  of  procedure  based  upon 
the  procedure  of  accusation,  the  judge  acted  sometimes  as 
counsel  for  the  defense.  This  was  true  in  English  procedure 
until  a  comparatively  recent  date.  But  this  function  of  the 
judge  resulted  from  the  temporary  derangement  of  the  balance 
between  the  two  parties  in  a  trial  by  the  introduction  of  public 
prosecution.  It  is  obvious  that  this  is  not  a  proper  function  for 
a  judge,  because  it  puts  him  in  a  partizan  position. 

The  criminal  bench  of  today  may  be  divided  into  two  classes, 
namely,  the  examining  magistrates,  and  the  judges  who  make 
the  final  decisions.  In  England  and  the  United  States  the  ex- 
amining magistrate  is  also  a  police  magistrate  who  has  the  power 


328  CRIMINOLOGY 

of  summary  trial  in  some  cases.  But  this  power  is  incompatible 
with  the  most  eflScient  examination  on  the  part  of  the  magis- 
trate. He  cannot  be  so  open-minded  and  so  active  in  his  in- 
vestigation if  he  knows  that  he  must  come  to  a  final  decision  and 
must,  therefore,  be  constantly  weighing  the  evidence.  The 
position  of  the  French  juge  d'instruction  is  preferable  in  this 
respect,  because  his  function  is  only  to  examine.  His  powers 
are  probably  too  arbitrary  and  too  extensive,  but  his  facilities 
for  making  a  careful  examination  are  far  superior  to  those  of  the 
Anglo-American  examining  magistrate. 

The  judge  has  exclusive  powers  of  judging  only  the  minor 
offenses  in  most  of  the  civilized  countries,  because  the  graver 
crimes  are  usually  tried  by  a  jury.  But  in  England  the  right  of 
trial  by  jury  is  frequently  waived  by  the  accused  in  indictable 
offenses,  and  in  these  cases  a  summary  trial  by  the  judge  is 
given.  In  Holland  there  has  never  been  a  jury.  A  great  ad- 
vantage of  trial  by  a  judge  is  the  sobriety  and  calmness  of  the 
procedure,  because  the  counsel  omit  the  claptrap  and  oratory 
which  they  use  before  a  jury.  A  visit  to  a  Dutch  court  shows  the 
marked  difference  between  it  and  courts  in  countries  where 
juries  are  used.  The  counsel  are  much  quieter  and  more  to  the 
point  in  their  arguments,  and  the  judges  are  much  more  atten- 
tive and  take  many  notes. 

When  a  trial  by  jury  is  in  progress  the  judge  has  the  following 
functions  to  perform.  He  has  supervision  over  the  taking  of 
evidence.  In  English  and  American  courts  the  judge  interprets 
and  applies  the  law  of  evidence.  In  Continental  procedure  the 
presiding  judge  conducts  the  examination,  and  inasmuch  as  the 
law  of  evidence  is  very  rudimentary  he  has  a  discretionary 
authority  as  to  what  evidence  shall  be  admitted,  etc.  After  the 
examination  and  contradictory  debate  in  Anglo-American  pro- 
cedure comes  the  charge  of  the  judge  to  the  jury.  In  his  summing 
up  of  the  case  the  judge  is  expected  to  state  the  law  connected 
with  the  case,  and  to  review  the  evidence  only  in  so  far  as  is 
necessary  for  this  statement  of  law.  He  is  not  supposed  to  ex- 
press his  opinion,  but  will  frequently  reveal  it,  and  is  likely 
to  influence  the  jury  thereby. 

If  the  jury  brings  in  a  verdict  of  guilty,  the  judge  pronounces 
the  sentence.  The  power  of  the  judge  to  decide  the  penalty  has 
been  increasing  recently.    On  the  European  Continent  the  ex- 


THE   JUDICIAL  FUNCTION  329 

pedient  of  extenuating  circumstances  gives  the  judge  a  certain 
amount  of  latitude  in  fixing  the  penalty,  and  the  indeterminate 
sentence  does  the  same  in  the  United  States.  The  suspension 
of  sentence  and  conditional  release  also  increase  the  power  of 
the  judge.  It  has  also  been  suggested  that  he  should  be  given 
the  power  of  pardoning,  but  this  is  scarcely  necessary  when  he 
has  the  powers  of  suspending  sentence  and  of  conditional  re- 
lease. 

The  true  functions  of  the  judge  are  to  estimate  the  value  of 
evidence,  and  to  prescribe  the  appropriate  treatment.  The  last 
he  should  do  only  tentatively,  but  his  power  may  be  extended 
over  the  period  of  penal  treatment  itself  by  means  of  the  periodic 
revision  of  sentences  which  will  be  discussed  presently.  In  many 
respects  the  judges  of  today  are  not  well  fitted  to  perform 
these  functions. 

The  Training  and  Appointment  of  Judges 

The  personnel  of  the  criminal  bench  is  composed  almost 
invariably  of  lawyers  with  a  purely  legal  training.  Some  of 
them  are  members  also  of  the  civil  bench,  where  they  do  most  of 
their  work.  As  a  result  of  his  exclusively  legal  training  the  judge 
of  today  tends  to  regard  the  criminal  as  a  juridical  abstraction. 
Dominated  as  they  are  by  purely  legal  standards,  many  judges 
oppose  the  introduction  of  the  scientific  standards  of  criminology. 
This  has  caused  an  antagonism  of  legal  and  scientific  interests  in 
criminal  procedure.  If  the  criminal  bench  could  be  separated 
entirely  from  the  civil  bench,  the  legal  bias  of  the  judges  would 
not  be  so  strong,  and  it  would  be  more  feasible  to  introduce 
scientific  methods. 

It  is  contended  by  some  persons  that  the  professional  judge 
tends  to  see  guilt  in  every  accused  person.  The  champions  of 
the  jury  have  made  much  of  this  criticism,  and  have  undoubtedly 
carried  it  too  far.  It  is  true  that  a  long  experience  in  performing 
judicial  functions  and  the  condemnation  of  many  criminals 
may  develop  in  a  judge  the  tendency  to  regard  every  defendant 
as  guilty.  But  this  is  not  necessarily  the  case,  and  it  depends  to 
a  considerable  extent  upon  the  temperament  of  the  judge. 
There  are  certain  features  of  European  Continental  procedure 
which  encourage  this  tendency  in  judges,  as,  for  example, 


330  CRIMINOLOGY 

reading  the  record  of  the  preliminary  examination  before  the 
trial,  and  conducting  the  examination  during  the  trial,  but  these 
features  can  and  should  be  changed.  The  publicity  of  a  trial 
is  a  check  upon  the  judge,  because  the  public  would  quickly 
resent  any  grave  partiality  of  the  judge  against  the  accused. 
The  decision  of  a  judge  is  rarely  ever  the  final  resort,  and  many 
guarantees  of  individual  rights  exist  in  the  way  of  appeal, 
revision  of  sentences,  etc.,  and  these  guarantees  are  increasing 
as  punishment  is  becoming  more  individualized. 

The  training  which  would  develop  a  scientific  criminal  mag- 
istracy has  been  suggested  in  the  preceding  chapter.  There 
should  be  a  special  course  in  the  law  school  for  those  who  wish 
to  prepare  for  this  branch  of  the  judiciary.  In  this  course  should 
be  studied,  in  addition  to  the  fundamental  principles  of  law  and 
the  legal  aspects  of  procedure;  criminal  anthropology,  psychol- 
ogy, and  sociology;  and  the  psychology  of  testimony.  In  connec- 
tion with  this  course  should  be  held  clinics  in  prisons,  hospitals, 
insane  asylums,  and  morgues. 

Then  should  come  some  experience  in  gathering  and  exam- 
ining evidence  in  connection  with  the  police  force.  In  this 
fashion  would  be  acquired  an  acquaintance  with  police  methods 
and  the  ability  to  estimate  the  value  of  evidence.  A  temporary 
residence  in  a  penal  institution  would  also  be  advisable,  in  order 
to  study  criminals  at  first  hand  and  to  become  acquainted  with 
penal  methods.  The  student  would  now  be  prepared  to  take 
part  in  a  trial  as  counsel.  It  would  probably  be  preferable  for 
him  to  commence  as  a  public  defender  in  order  to  avoid  all 
possibility  of  ever  becoming  prejudiced  against  the  accused. 
After  some  experience  as  a  public  defender  he  should  become  a 
public  prosecutor,  and  then  alternate  between  the  two  at  more 
or  less  regular  intervals.  This  alternation  would  prevent  the 
judge  from  becoming  biased  on  either  side,  and  would  develop 
his  ability  to  judge  the  value  of  evidence,  because  he  would 
have  to  view  it  from  both  sides. 

From  the  ranks  of  the  public  prosecutors  and  public  defenders 
would  be  recruited  the  judges  for  the  criminal  bench.  These 
judges  would  be  free  from  most  of  the  faults  of  the  judges  of 
today,  and  would  have  the  technical  knowledge  which  the  jury 
lacks.  They  would,  therefore,  be  the  logical  substitutes  for  the 
jury. 


THE   JUDICIAL  FUNCTION  33 1 

Today  when  a  judge  has  sentenced  a  criminal,  he  is  able  to 
dismiss  him  from  his  mind.  Rarely  ever  does  he  have  to  revize 
his  sentence,  and  then  it  is  usually  for  a  purely  legal  reason. 
So  that  the  judge  is  not  made  to  feel  keenly  the  consequences 
of  his  sentences.  And  yet  he  should  be  fully  aware  of  these  con- 
sequences in  order  to  increase  his  sense  of  responsibility.  He 
should  be  acquainted  with  the  effects  of  the  sentences  he  im- 
poses upon  criminals.  His  sense  of  responsibility  would  be 
greatly  increased  if  he  were  given  the  power  of  revizing  sentences 
periodically,  or  at  least  a  share  in  this  power. 

In  this  connection  may  be  raised  the  question  as  to  whether 
or  not  a  single  judge  is  preferable  to  a  plurality  of  judges.  It 
is  asserted  in  behalf  of  the  single  judge  that  he  feels  entirely 
responsible  for  his  acts,  while  a  plurality  of  judges  tends  to 
destroy  the  feeling  of  responsibility  of  each  judge.  The  single 
judge,  therefore,  uses  greater  care  in  his  decisions,  and  is  gov- 
erned by  a  higher  moral  standard.  For  these  reasons  the  single 
judge  would  probably  be  preferable  in  most  cases.  In  some  cases 
it  might  be  advisable  to  have  several  judges  each  of  whom  would 
be  a  specialist  in  a  branch  of  knowledge  which  contributes  to 
making  a  wise  decision  in  a  complicated  case.  Such  a  board  of 
judges  would  correspond  to  a  jury  of  experts,  and  would  give 
a  consensus  of  opinion  upon  the  case  under  examination  like 
a  consultation  of  doctors. 

In  this  country  recently  there  has  been  a  tendency  to  encour- 
age juvenile  court  judges  to  specialize  in  that  field  of  judicial 
work.  There  are  temperamental  and  other  differences  between 
judges  which  render  some  of  them  more  adapted  to  juvenile 
court  work  than  the  others.  But  it  is  questionable  if  it  would  be 
desirable  to  develop  a  special  type  of  juvenile  court  judge.  It 
is  probably  advisable  that  the  same  judges  try  both  juvenile 
and  adult  cases.  Just  as  a  physician,  in  order  to  understand  the 
diseases  of  adults,  needs  to  know  something  about  the  diseases 
of  children  and  vice  versa,  so  it  is  that  a  judge,  in  order  to  be 
able  to  judge  juvenile  criminals,  must  understand  adult  crim- 
inals and  vice  versa.  In  fact,  it  is  doubtful  if  it  is  desirable  to 
have  any  special  types  of  judges.  All  judges  should  have  a 
training  sufficiently  broad  to  enable  them  to  judge  wisely  any 
type  of  crime  and  of  criminal. 

The  conservation  of  the  independence  of  the  criminal  bench 


332  CRIMINOLOGY 

will  become  still  more  important  when  trial  by  jury  has  been 
abolished.  In  the  lower  grades  of  the  juridical  hierarchy  in 
which  the  judge  holds  the  highest  rank  the  choice  of  men  for 
positions  would  have  to  be  by  examination.  But  in  the  higher 
ranks  an  examination  would  not  be  an  adequate  test.  In 
Europe  judges  are  usually  appointed  for  life  by  the  government. 
The  permanent  tenure  of  office  gives  them  a  considerable  amount 
of  independence.  But  they  are  nevertheless  under  the  influence 
of  the  executive  power  to  a  certain  extent,  because  their  ad- 
vancement depends  upon  the  executive.  In  the  United  States 
the  tendency  has  been  towards  the  election  of  judges.  A  serious 
objection  to  this  method  of  choice  is  the  temporary  tenure  of 
office,  though  this  objection  has  been  partly  obviated  by  making 
the  terms  very  long. 

If  the  criminal  magistracy  is  to  become  a  special  profession, 
it  is  absolutely  essential  that  the  tenure  of  office  should  be  more 
or  less  permanent.  Otherwise  it  will  be  impossible  to  induce 
suitable  candidates  to  acquire  the  training  for  the  profession. 
But  if  the  choice  of  the  judges  is  left  to  the  more  or  less  uncertain 
method  of  popular  election,  their  tenure  of  office  will  be  very 
precarious.  It  is,  however,  hard  to  determine  by  whom  the 
choice  is  to  be  made,  whether  by  the  executive  power  or  by  the 
legislative  power.  The  judiciary  should  not  be  too  much  under 
the  influence  of  any  one  branch  of  the  government.  A  method  of 
choice  will  have  to  be  developed  which  will  safeguard  the  judi- 
ciary from  domination  by  any  other  branch  of  the  government. 
The  higher  judges  will  probably  be  appointed  from  the  lower 
judicial  ranks  by  the  executive  power  with  the  consent  of  the 
legislature.  The  judges  in  the  lower  ranks  can  be  chosen  at 
least  in  part  by  the  judges  in  the  higher  ranks. 

The  Control  of  the  Judiciary 

At  the  same  time  it  is  essential  that  the  judiciary  should  be 
under  an  efficient  control.  It  happens  all  too  frequently  at  the 
present  time  that  judges  exceed  their  powers  and  violate  the 
law.  Furthermore,  the  criminal  judges  are  much  given  to  de- 
livering moral  homilies  to  convicted  persons  and  others  who 
appear  before  them  which  partake  of  the  nature  of  obiter  dicta. 
These  utterances  are  usually  colored  by  class  and  religious  prej- 


THE  JUDICIAL  FUNCTION  333 

udices  which  render  these  utterances  insulting  to  those  towards 
whom  they  are  directed  and  offensive  to  impartial  observers. 
The  autocratic  position  of  the  judge  in  his  own  courtroom  in- 
evitably tends  to  develop  in  him  a  pontifical  manner  and  a  feeling 
of  infallibility  which  should  be  carefully  checked.  This  is  pe- 
culiarly true  of  the  relatively  untrained  and  comparatively 
incompetent  judges  who  are  chosen  under  our  present  system. 

When  the  judges  are  adequately  trained  for  their  positions 
these  evils  will  disappear  in  large  part.  The  judges  will  then 
comprehend  the  causes  of  the  criminality  of  those  who  are  ar- 
raigned before  them,  and  will  no  longer  indulge  in  puerile  and 
futile  admonitions  to  goodness.  But  it  will  still  be  necessary 
to  maintain  checks  upon  the  judiciary.  The  bench  can  be  or- 
ganized in  such  a  fashion  that  it  can  furnish  its  own  discipline 
to  a  considerable  extent.  The  upper  ranks  of  the  judicial  hier- 
archy can  supervize  the  work  of  the  lower  ranks.  Public  im- 
peachment could  be  used  in  extreme  cases,  and  would  serve  as 
a  control  over  the  supreme  judges.  Impeachment  could  be 
exercized  most  effectively  ordinarily  by  means  of  a  board  of 
discipline  composed  of  high  executive,  legislative,  and  judicial 
officials.  Inasmuch  as  such  a  disciplinary  board  would  repre- 
sent all  branches  of  the  government,  it  would  be  impartial  when 
exercizing  its  power  over  the  judiciary. 

In  this  country  recently  some  use  has  been  made  of  the  popular 
recall  of  judges  and  of  judicial  decisions  to  serve  as  a  check  upon 
the  judiciary.^  There  can  be  no  question  that  the  judiciary 
has  acquired  an  egregiously  excessive  power  in  this  country.^ 
The  popular  recall  of  judges  and  especially  of  judicial  decisions 
doubtless  are  valuable  democratic  devices  for  restraining  the 
courts  from  deciding  important  political  and  social  questions 
and  from  judicial  legislation  by  means  of  an  abuse  of  the  power 
of  interpreting  the  law.  But  these  abuses  of  judicial  power  take 
place  almost  exclusively  in  the  civil  courts.  So  that  there  is 
scarcely  any  need  for  the  popular  recall  in  the  criminal  courts, 
and  it  would  be  highly  undesirable  to  subject  the  criminal  magis- 
tracy and  their  decisions  to  the  popular  recall,  because  it  would 

^  See,  for  example,  J.  D.  Bamett,  The  Operation  of  the  Initiative,  Referen- 
dum, and  Recall  in  Oregon,  New  York,  1915. 

^  See,  for  example,  C.  G.  Haines,  The  American  Doctrine  of  Judicial  Su- 
premacy, New  York,  19 14. 


334  CRIMINOLOGY 

make  their  tenure  of  office  precarious  and  criminal  justice  un- 
certain. 

The  gradual  elimination  of  the  jury  and  the  increasing  in- 
dividualization in  the  treatment  of  the  criminal  will  greatly 
enhance  the  importance  of  judicial  functions.  These  facts  in- 
dicate the  supreme  importance  of  an  able  and  efficient  criminal 
magistracy.  In  order  to  attract  to  it  the  men  of  the  best  ability, 
it  will  be  necessary  to  offer  adequate  remuneration  and  per- 
manency of  employment.  These  will  be  guarantees  also  against 
the  danger  of  bribery.  The  training  outlined  above  will  give 
them  the  necessary  special  knowledge.  These  judges  will  gather 
many  scientific  facts  which  the  judges  of  today  are  incapable 
of  comprehending.  These  facts  will  be  of  the  utmost  value  in 
developing  the  science  of  criminology  and  increasing  its  applica- 
tions to  procedure.  Upon  the  decisions  of  these  judges  will  be 
based  a  system  of  jurisprudence  which,  though  it  can  never  be 
as  exact  as  a  jurisprudence  based  upon  a  penal  code,  will  never- 
theless increase  the  wisdom  and  certainty  of  decisions  as  time 
goes  by. 


CHAPTER  XXI 
THE  POLICE  FUNCTION 

The  F>olice  and  the  army  —  Police  organization  and  administration:  national 
and  local  police  control;  the  rural  police  —  The  functions  of  the  police  - 
The  training  and  selection  of  the  police  force  —  The  integrity  of  the 
police  —  Evil  influence  of  unenforceable  laws  against  vice  —  Homicide 
in  the  United  States  —  Arrest  —  Preliminary  detention  —  Provisional 
liberation  —  Indemnification  for  mistaken  detention  and  prosecution. 

The  police  power  of  the  state  is  one  of  the  most  important 
functions  of  the  executive  branch  of  government.  It  enforces 
the  dictates  of  the  legislative  and  judicial  branches  of  govern- 
ment, and,  consequently,  includes  a  great  variety  of  powers. 
Among  these  are  the  repression  of  crime,  the  regulation  of  public 
morals,  the  maintenance  of  public  order,  the  protection  of  the 
safety  and  health  of  the  public,  the  control  of  the  dependent 
classes;  and  the  regulation  of  various  economic  conditions  and 
activities,  such  as  the  protection  of  debtors,  the  protection  of 
laborers,  the  prevention  of  fraud,  the  regulation  of  combinations 
of  labor  and  of  capital,  the  control  of  corporations,  etc.^ 

The  police  function  of  the  state  has  been  performed  in  various 
ways  in  the  past.  The  army  has  usually  taken  an  important 
part  in  enforcing  the  law.  Private  citizens  have  frequently 
been  forced  to  take  turns  in  serving  on  watch  duty,  and  to  assist 
in  capturing  criminals  as  members  of  a  posse  comitatus.^  But 
within  the  past  century  or  two  regular  police  bodies  have  come 
into  being  in  all  civilized  countries,  which  have  usually  evolved 
out  of  the  army. 

The  poUce  power  is  the  strong  arm  of  the  state  by  means  of 
which  it  ordinarily  enforces  its  laws.    In  time  of  war  and  under 

^  Cf.  E.  Freund,  The  Police  Power,  Chicago,  1904. 

*In  Saxon  England  prevailed  the  "frankpledge"  system,  according  to 
which  the  members  of  each  tithing,  or  group  of  ten,  were  responsible  for 
any  offense  committed  by  one  of  its  members.  See  W.  A.  Morris,  The  Frank- 
pledge System,  New  York,  1910;  W.  L.  M.  Lee,  A  History  of  Police  in  Eng- 
land, London,  1901. 


23(>  CRIMINOLOGY 

martial  law  the  military  power  may  supersede  it.  But  in  civil- 
ized countries  it  is  the  customary  means  of  enforcing  the  will 
of  the  state.  There  could  be  little  repression  of  crime  without  an 
organized  police  force,  for  without  such  an  organization  all  of 
the  repressing  would  have  to  be  done  by  private  citizens,  most 
of  whom  are  unprepared  and  unfitted  for  such  work.  As  a 
matter  of  fact,  criminals  have  been  rampant  in  the  past,^  and 
are  so  usually  today  in  frontier  and  barbarous  communities. 
In  our  frontier  communities  it  has  usually  been  found  neces- 
sary to  organize  vigilance  committees  to  repress  criminals  and 
maintain  order  until  a  police  force  could  be  organized.  Even 
in  our  civilized  communities  the  direct  social  cost  of  criminal 
activities  in  persons  killed  and  injured  andproperty  stolen  and 
destroyed  is  very  great."^ 

Police  Organization  and  Administration 

The  manner  in  which  the  police  has  been  organized  in  each 
country  has  depended  somewhat  upon  the  nature  of  the  govern- 
ment. In  the  countries  where  the  government  is  highly  cen- 
tralized the  police  is  usually  controlled  by  the  central  govern- 
ment, so  that  the  local  communities  have  little  to  say  with 
regard  to  the  police  protection  which  they  receive.  This  is  in- 
variably the  case  in  autocratically  and  oligarchically  governed 
countries,  where  the  police  constitutes  a  powerful  weapon  in 
the  hands  of  the  monarch  or  ruling  class.  Germany  and  Russia  ' 
are  two  countries  in  which  the  control  of  the  police  is  highly 
centralized,  and  is  frequently  used  as  a  means  of  oppression. 

In  the  countries  where  the  government  is  more  or  less  decen- 
tralized, which  are  invariably  democratically  governed,  the 
police  is  ordinarily  controlled  by  the  local  communities.  The 
two  principal  examples  of  this  type  of  police  administration  are 
England  and  the  United  States. 

1  See,  L.  O.  Pike,  A  History  of  Crime  in  England,  2  vols.,  London,  1873-6. 

*  See,  for  a  discussion  of  the  aggregate  amount  stolen  by  professional 
criminals  in  this  country,  J.  Flynt,  TJie  World  of  Craft,  New  York,  1901, 
pp.  148-190. 

See,  for  an  estimate  of  the  cost  of  penal  repression  in  the  State  of  Massa- 
chusetts, W.  F.  Spalding,  The  Money  Cost  of  Crime,  in  the  Jour.  Crim.  Law, 
Vol.  I,  No.  I,  May,  1910,  pp.  86-102. 

'  The  above  statement  was  written  previous  to  the  Russian  Revolution 
of  191 7  which  has  lessened  materially  the  power  of  the  police  in  Russia. 


THE  POLICE  FUNCTION  337 

It  goes  without  saying  that  in  so  far  as  centralized  police 
control  leads  to  the  use  of  the  police  power  for  autocratic  and 
oligarchic  ends,  and  to  the  violation  of  fundamental  human 
rights  and  liberties,  it  is  to  be  condemned.  ^  Furthermore,  even 
when  a  country  is  democratically  governed,  though  the  govern- 
ment is  highly  centralized,  as  in  France,  local  police  control  is 
better  in  some  respects,  since  each  community  can  judge  best  for 
itself  its  own  needs. 

On  the  other  hand,  there  are  some  advantages  in  centralized 
police  control,  provided  it  is  not  used  for  purposes  of  oppression. 
A  national  police  administration  can  in  many  respects  be  more 
efficient  in  the  repression  of  crime.  Many  criminals  travel 
around  a  good  deal,  and  a  national  police  can  keep  track  of  them 
and  check  their  activities  more  effectively  than  local  police 
bodies.  Furthermore,  a  national  police  organization  can  keep 
in  closer  touch  with  similar  organizations  in  other  countries, 
thus  making  more  effective  the  international  repression  of  crime. 
It  is  also  asserted  sometimes  that  the  police  should  be  controlled 
by  the  central  government,  because  many  of  the  laws  to  be  en- 
forced have  been  promulgated  by  the  central  government.    This 

^  A  careful  observer  has  characterized  the  autocratically  controlled  Ger- 
man police  in  the  following  terms:  — 

"The  autocratic  spirit  of  the  German  government  is  reflected  in  the  im- 
perviousness  of  the  police  to  public  opinion.  The  police  department  is  a 
specialized  institution  in  the  details  of  which  the  people  are  held  to  have 
no  proper  interest.  Not  only  are  police  records  withheld  from  public  scru- 
tiny, but  in  the  state-controlled  forces  no  information  of  any  kind  relative 
to  administration  is  ever  vouchsafed  to  the  citizens.  Indeed,  he  would 
be  a  valiant  man  who  would  ask  for  it."  (R.  B.  Fosdick,  European  Police 
Systems,  New  York,  19 15,  p.  77.) 

"The  general  attitude  of  the  police  toward  the  public  is  also  indicative 
of  the  autocratic  spirit  of  the  German  government.  The  unfailing  courtesy 
of  the  English  police  is  often  lacking  in  the  German  forces.  Arbitrariness 
too  frequently  marks  the  conduct  of  the  latter  in  their  relations  with  the 
public.  The  great  powers  of  the  police  oCQcial,  his  right  to  fine  and  imprison 
without  judicial  process,  his  exemption  from  prosecution  for  false  arrest, 
breed  an  arrogance  hardly  to  be  tolerated  in  democratic  communities.  To 
be  sure,  the  temper  and  character  of  the  Teutonic  people  are  attuned  to 
this  kind  of  stern  management.  They  seem  even  to  demand  it.  If  it  be 
true,  as  has  been  asserted,  that  a  Berlin  Schutzmann  in  Trafalgar  Square 
would  provoke  a  riot  in  two  hours,  it  is  equally  true  that  the  peaceful- 
mannered  London  'Bobby'  would  be  overwhelmed  in  Berlin.  Back  of  the 
sharp  contrasts  between  the  English  and  German  police  are  fundamental 
differences  in  race-history  and  national  character."    {Op.  cit.,  pp.  78-79.) 


338  CRIMINOLOGY 

is  true  in  a  measure,  though  there  are  some  advantages  in  an 
administration  of  the  national  laws  by  the  local  authorities,  be- 
cause it  then  becomes  more  feasible  to  adjust  to  local  needs  laws 
which  are  not  well  adapted  to  conditions  in  all  parts  of  the 
country. 

In  this  country  the  police  has  been  almost  entirely  imder 
local  control.  The  Federal  Government  maintains  a  small 
detective  force  for  the  enforcement  of  the  Federal  laws.  A  few 
of  the  States  maintain  small  police  organizations.  The  metro- 
politan police  of  a  few  of  the  large  cities  is  administered  by  the 
State  government.  But  aside  from  these  exceptions  the  munic- 
ipal police  forces  are  controlled  by  the  municipal  governments, 
and  the  county  police  forces  by  the  county  governments. 

There  is  probably  no  valid  objection  to  the  Federal  detective 
bureau,  so  long  as  it  limits  its  activities  to  the  enforcement  of  the 
Federal  laws.  The  State  police  bodies  have  usually  been  estab- 
lished for  the  purpose  of  detecting  and  repressing  crime  in  the 
rural  districts.  There  is  no  doubt  that  the  rural  districts  have 
not  usually  had  efficient  police  protection,  so  that  the  State 
police  has  been  useful  for  the  repression  of  rural  crime.  It  has 
also  been  used  in  the  place  of  the  militia  for  the  suppression  of 
labor  riots  and  similar  disturbances.  This  also  is  a  legitimate 
use  for  a  State  police,  when  it  does  not  exceed  its  powers  in  so 
doing.  There  is,  however,  more  or  less  evidence  that  it  has 
sometimes  been  used  for  the  suppression  of  strikes  in  the  in- 
terests of  employers.  This  is  the  unenviable  reputation  of  the 
Pennsylvania  State  Constabulary.^  Members  of  the  State 
police  in  several  States  have  at  times  been  guilty  of  brutal  con- 
duct which  has  earned  for  them  the  title  of  the  "American  Cos- 
sacks." 

It  goes  without  saying  that  lawlessness  and  brutality  are  not 
Umited  to  the  State  police.  The  militia  have  frequently  been 
guilty  of  similar  conduct  when  called  out  to  perform  poUce  duty, 

1  Numerous  instances  of  brutal  and  illegal  acts  in  the  suppression  of 
strikes  by  the  members  of  this  State  police  force  are  described  by  C.  A. 
Maurer,  The  Constabulary  of  Pennsylvania,  Reading,  Pa.  See  also  H.  W. 
Laidler,  Boycotts  and  the  Labor  Struggle,  New  York,  1913,  pp.  20-25. 

The  opposite  side  is  stated  by  Katherine  Mayo  in  a  book  which  furnishes 
much  information,  but  is  too  eulogistic  and  not  sufficiently  critical.  (Kath- 
erine Mayo,  Justice  to  All,  The  Story  of  the  Pennsylvania  State  Police,  New 
York,  1917.) 


THE   POLICE   FUNCTION  339 

and  the  same  is  true  of  the  municipal  police.  The  militia  are 
not  under  constant  discipline,  and  it  is,  therefore,  not  altogether 
surprizing  that  they  should  be  somewhat  disorderly.  On  the 
other  hand,  they  are  usually  in  close  touch  with  the  people  and 
have  more  or  less  sympathy  with  the  workers  at  the  time  of  a 
strike. 

The  regularly  constituted  police  organizations,  such  as  the 
State  and  the  municipal  police,  should  be  under  thorough  dis- 
cipline, and  should  be  directed  to  enforce  the  law  without  any 
class  discrimination.  Where  they  are  lawless  and  brutal,  it  is 
due  to  the  fact  either  that  they  are  not  well  disciplined,  or  are 
being  used  in  the  interest  of  a  class.  The  latter  seems  to  be  the 
explanation  of  the  lawless  conduct  of  the  State  police  in  several 
States.  The  true  remedy,  however,  is  not  to  abolish  them  en- 
tirely, as  has  been  advocated  by  some  of  the  representatives  of 
labor,  for  they  are  needed  in  some  parts  of  the  country  to  protect 
the  rural  inhabitants.  There  are  also  occasions  when  they  can 
be  legitimately  used  in  connection  with  industrial  warfare,  to 
quell  rioting,  to  prevent  the  destruction  of  property,  etc.  The 
representatives  of  the  people,  therefore,  in  the  legislature  and  in 
the  gubernatorial  chair  should  see  to  it  that  no  class  in  the  com- 
monwealth gains  control  of  the  State  police  in  order  to  use  it  for 
unlawful  purposes. 

The  State  control  of  the  metropolitan  police  in  some  of  our 
large  cities,  such  as  Saint  Louis  and  Boston,  has  usually  arisen 
because  the  municipal  government  has  been  corrupt  and  in- 
efficient, or  was  supposed  to  be  so  by  the  inhabitants  of  the 
State.  In  many  of  these  cases  this  has  doubtless  been  true. 
And  inasmuch  as  the  large  cities  constitute  hiding  places  for 
the  criminals  who  operate  throughout  the  State,  there  is  much 
justification  for  a  State  supervision  and  control  over  the  metro- 
politan police  in  order  to  insure  its  efficiency.  On  the  other 
hand,  some  injustice  is  done  to  the  urban  population  by  taking 
away  from  it  the  control  over  its  own  police  force. 

In  this  country,  with  its  decentralized  form  of  government,  the 
control  of  the  police  is  destined  to  be  local  in  the  main,  unless  the 
government  becomes  much  more  centralized.  The  local  police 
authorities  should,  however,  cooperate  with  each  other  as  much 
as  possible  in  order  to  make  the  repression  of  crime  nation-wide 
in  its  efficiency. 


340  criminology 

The  Functions  of  the  Police 

The  functions  of  the  police  are  as  numerous  as  the  powers 
which  are  given  to  them  by  the  law.  We  may  classify  them 
broadly  as  follows: 

1.  To  apprehend  criminals. 

2.  To  protect  the  innocent. 

3.  To  perform  various  tasks  in  behalf  of  the  safety  and  wel- 
fare of  the  public. 

The  apprehending  of  criminals  has  become  a  veritable  art  in 
itself  in  which  many  of  the  sciences  are  utilized.  Whenever  a 
crime  has  been  committed,  it  becomes  essential  to  conserve  and 
interpret  all  of  the  available  evidence,  which  may  include  cloth- 
ing, parts  of  the  human  body,  imprints  upon  bottles,  footprints, 
etc.  In  fact,  any  object  may  at  some  time  or  other  become  a 
piece  of  evidence  in  a  criminal  case. 

When  the  criminal  or  person  accused  of  the  crime  has  been 
captured,  it  becomes  necessary  to  identify  him.  But  for  this  pur- 
pose various  methods  of  identification  have  been  devized,  such 
as  the  anthropometric  and  the  dactyloscopic  or  fingerprint 
methods.^  The  fingerprint  method  is  rapidly  becoming  the 
principal  means  of  identification  because  of  its  accuracy  and  the 
ease  with  which  it  can  be  applied.  Having  secured  these  facts, 
it  is  the  duty  of  the  police  to  present  them  in  court  in  order  that 
the  evidence  may  be  examined  and  judged  by  the  judicial  au- 
thorities. 

But  it  is  the  duty  of  the  police  not  only  to  capture  the  guilty, 
but  also  to  protect  the  innocent.  The  latter  is  a  duty  which  the 
police  are  apt  to  forget  in  their  zeal  to  apprehend  criminals.  As  a 
matter  of  fact,  it  is  almost  if  not  quite  as  important  that  human 
rights  and  liberties  should  be  safeguarded  and  conserved  as  it  is 
to  apprehend  criminals.  Consequently,  it  is  essential  that  the 
police  should  be  given  a  training  in  political  science  and  law 
which  will  enable  them  to  comprehend  these  rights  and  liberties, 
and  should  be  kept  under  a  rigid  discipline  which  will  restrain 
them  from  overstepping  the  bounds  of  their  legitimate  powers 
and  prerogatives. 

^  I  have  described  these  methods  of  identification  and  many  other  police 
methods  in  the  chapter  on  the  police  agency  in  my  book  entitled  The  Prin- 
ciples of  Anthropology  and  Sociology  in  Their  Relations  to  Criminal  Pro- 
cedure, New  York,  1908. 


THE  POLICE  FUNCTION  34 1 

The  third  group  of  functions  includes  various  tasks  in  behalf 
of  the  safety  and  welfare  of  the  public.  Among  the  earliest  of 
these  tasks  have  been  the  regulation  of  traffic  upon  the  public 
highways,  and  the  maintenance  of  order  in  crowded  public 
places.  But  in  recent  years  there  has  been  a  strong  tendency  to 
assign  to  the  police  numerous  tasks  in  connection  with  sanita- 
tion, the  census,  the  regulation  of  labor  conditions,  etc.  This 
tendency  has  resulted  from  the  vast  amount  of  legislation  in 
behalf  of  social  welfare  which  has  been  enacted  recently.  It  is 
desirable  that  the  police  should  be  used  as  much  as  possible  for 
these  purposes,  so  long  as  these  tasks  do  not  interfere  with  their 
primary  functions  of  repressing  crime  and  maintaining  order. 

In  fact,  there  is  no  reason  why  policemen  should  not  become 
exceedingly  useful  public  servants  far  beyond  their  present  use- 
fulness. Each  policeman  should,  instead  of  idling  along  his 
beat,  be  engaged  in  becoming  well  acquainted  with  his  neighbor- 
hood, and  should  serve  as  an  agent  and  representative  of  the 
government  in  many  important  respects.  This  would  develop 
in  him  a  feeling  of  responsibility  and  a  genuine  dignity  which 
he  now  usually  lacks,  and  would  serve  as  a  safeguard  against  the 
anti-social  attitude  which  he  frequently  acquires. 

As  the  strong  arm  of  the  state  the  police  is  entirely  or  mainly 
under  the  direct  control  of  the  executive  branch  of  the  govern- 
ment. But  the  judiciary  also  usually  has  a  certain  amount  of 
control  over  the  police,  while  the  legislature  through  its  legisla- 
tive power  can  indirectly  influence  the  police  greatly.  It  is 
desirable  that  the  police  should  be  mainly  under  the  direct  con- 
trol of  the  executive,  for  direct  control  by  the  legislature  would 
make  the  police  more  or  less  ineffective,  while  it  is  dangerous  to 
confuse  the  judicial  functions  of  the  courts  with  executive  func- 
tions. 

The  Training  and  Selection  of  the  Police  Force 

In  this  country  it  has  been  customary  to  choose  the  higher 
police  officials  from  the  civilian  class.  It  is  rarely  ever  desirable 
to  choose  these  officials  from  the  ranks  of  the  policemen,  be- 
cause they  lack  the  necessary  preliminary  education,  while  the 
routine  police  work  unfits  them  in  some  ways  for  the  higher 
positions.    But  it  has  unfortunately  been  true  in  this  country 


342  CRIMINOLOGY 

that  civilian  officials  have  frequently  been  chosen  for  partizan 
political  reasons,  and  not  on  account  of  their  efficiency.  This 
has  been  true  not  only  where  there  has  been  a  single  head  or  a 
partizan  police  board,  but  even  where  there  has  been  a  bi- 
partizan  board. 

In  Europe  the  poHce  officials  have  ordinarily  had  more  train- 
ing and  special  experience  for  police  work.  Frequently  army 
officers  have  been  placed  in  these  positions.  But  while  the  mil- 
itary training  is  useful  in  some  ways  for  purposes  of  discipline, 
there  is  always  the  danger  of  introducing  the  military  point  of 
view  in  dealing  with  police  problems.  In  a  few  countries,  as, 
for  example,  in  Germany,  many  of  the  higher  police  officials 
have  had  special  training  in  political  economy  and  administra- 
tive law.  These  men  have  made  the  police  their  profession,  and 
doubtless  constitute  the  best  trained  group  of  police  officials  in 
the  world. 

What  is  most  needed  is  an  extension  of  this  special  training. 
These  police  officials  should  come  from  a  group  of  men  who  are 
specially  trained  not  only  for  the  police  profession,  but  also  to 
become  judges  in  the  criminal  courts,  and  administrators  of 
prisons.  These  men  should  receive  a  thorough  education  in 
political,  economic,  and  social  science,  in  law,  and  in  criminology. 
Then  they  should  have  a  preliminary  experience  in  the  courts, 
in  the  police  department,  and  in  the  prisons.  After  this  expe- 
rience they  should  be  assigned  on  the  basis  of  aptitude  and  liking 
to  the  branch  for  which  they  are  best  fitted.  Some  of  them 
would  become  public  prosecutors  and  defenders  and  eventually 
judges,  some  of  them  prison  officials  and  administrators,  and 
some  of  them  police  officials.  The  preliminary  experience  in 
all  of  these  lines  of  work  would  prepare  them  for  everything 
which  has  to  do  with  crime  and  criminals.  At  present  most  of 
those  engaged  in  performing  these  functions  are  not  specially 
prepared  for  their  tasks,  and  have  little  knowledge  of  each  other's 
work,  despite  the  intimate  relation  which  exists  between  their 
respective  functions. 

The  subordinate  positions  can  be  readily  filled  from  the  ranks 
of  the  policemen.  With  respect  to  the  qualffications  for  the 
men  in  the  ranks,  it  is  needless  to  say,  to  start  with,  that  they 
should  have  a  requisite  amount  of  strength,  a  good  moral  char- 
acter, and  a  fair  degree  of  intelUgence.    But  some  special  educa- 


THE   POLICE   FUNCTION  343 

tion  and  training  in  addition  is  essential.  After  the  preliminary 
examination  has  been  taken  the  police  recruit  should  be  given 
a  course  of  instruction  covering  several  months.  This  course 
should  furnish  him  an  elementary  knowledge  of  criminal  law, 
an  acquaintance  with  the  methods  of  identifying  criminals, 
and  a  sufficient  knowledge  of  the  nature  of  legal  evidence  to 
enable  him  to  gather  evidence  and  to  protect  it  from  destruction 
until  it  can  be  examined  by  the  judicial  authorities. 

From  the  uniformed  force  the  best  men  should  be  selected  to 
become  the  subordinate  officers  and  the  detectives.  These  men 
should  be  given  additional  training  in  law,  police  methods,  and 
in  criminology.  They  should  acquire  some  knowledge  of  crim- 
inal anthropology  and  psychology,  which  will  enable  them  to 
distinguish  between  the  different  types  of  criminals,  and  to 
understand  the  principal  methods  used  by  criminals.  The  work 
of  these  police  officers  will  be  much  more  effective  when  they 
can  discern  the  difference  between  an  occasional  criminal  and 
a  professional  criminal,  between  an  insane  criminal  and  a  crifti- 
inal  by  passion,  while  a  knowledge  of  criminal  methods  will 
enable  them  to  check  much  more  frequently  the  activities  of 
criminals.^ 

The  science  of  criminology  contains  a  rich  store  of  information 
for  the  police.  The  study  of  this  science  should,  of  course,  be 
supplemented  with  practical  experience  in  the  field.  The  police 
will  accomplish  most  effectively  their  function  of  repressing 
crime  when  they  apply  scientific  knowledge  and  practical  expe- 
rience to  the  work  of  foiling  the  activities  of  criminals.  More  or 
less  practical  experience  many  of  them  already  have,  but  they 
have  not  yet  used  scientific  knowledge  to  any  great  extent.^ 

1  Perhaps  the  leading  if  not  the  only  school  of  this  nature  is  the  school 
for  the  scientific  police  in  Rome.  Its  curriculum  is  described  briefly  by  its 
director  as  follows:  "Besides  description  (Bertillon  system  and  dactyloscopy) 
and  legal  photography,  the  principal  courses  consist  in  judicial  investiga- 
tions and  applied  anthropology  and  psychology.  Both  of  the  latter  are 
taught  according  to  the  above  mentioned  principles,  resulting  in  a  complete 
reform  in  f>olice  methods.  The  course  is  given  with  the  help  of  convicts  in 
the  prison,  in  the  proximity  of  which  the  school  is  located."  (S.  Ottolenghi, 
The  Scientific  Police,  in  the  Jour.  Crim.  Law,  Vol.  Ill,  No.  6,  March,  1913, 
p.  880.) 

^  Fuld  says  that  in  order  to  become  acquainted  with  the  professional 
criminal  the  policeman  "should  study  his  habits  of  life,  his  personal  charac- 
ter, and  his  business  methods  as  carefully  as  the  hunter  studies  the  charac- 


344  CRIMINOLOGY 

A  few  of  the  cities  in  this  country  maintain  police  schools, 
and  there  are  a  number  of  such  schools  in  Europe.^  It  is  doubt- 
ful if  the  training  in  any  one  of  them  is  as  thoroughgoing  as  it 
should  be,  while  many  more  of  them  are  needed.  It  is  to  be 
hoped  that  before  long  every  policeman  will  receive  adequate 
preparation  before  he  is  entrusted  with  the  important  public 
duties  of  protecting  society  from  crime  and  of  maintaining  order. 

The  Integrity  of  the  Police 

The  efficiency  of  the  police  depends  not  only  upon  its  training 
but  also  upon  its  integrity.  One  of  the  most  difficult  of  police 
problems  is  the  safeguarding  of  the  integrity  of  the  police.  This 
is  because  there  are  many  individuals  to  whose  interest  it  is  to 
corrupt  the  police.  Among  these  are  the  criminal  classes  who 
wish  freedom  to  carry  on  their  criminal  activities,  the  vicious 
classes  who  wish  freedom  to  carry  on  vicious  activities  which 
are  forbidden  by  the  law,  and  also  a  good  many  citizens  who  are 
not  necessarily  or  ordinarily  criminal  or  vicious,  but  to  whose 
pecuniary  interest  it  is  to  violate  various  regulations  and  or- 
dinances promulgated  by  the  government. 

The  police  are  therefore  in  constant  danger  of  being  tempted 
by  bribes  and  other  inducements  to  refrain  from  doing  their 
duty.  In  fact,  the  police  department  is  perhaps  the  most  vul- 
nerable point  in  the  honesty  of  a  government.  This  has  been 
well  illustrated  in  the  government  of  many  of  our  cities.  Munic- 
ipal government  in  this  country  has  been  notoriously  corrupt. 
This  corruption  has  usually  demoralized  the  police  department 
first  of  all,  and  frequently  more  than  any  other  department.^ 
While  police  corruption  may  not  in  the  long  run  do  as  much 

ter  and  habits  of  the  animal  he  hunts.  He  should  become  intimately  ac- 
quainted with  the  criminal's  inner  consciousness  and  point  of  view;  in  no 
other  way  can  he  hope  to  develop  skill  in  defeating  his  criminal  purposes." 
(L.  F.  Fuld,  Police  Administration,  New  York,  1909,  p.  151.) 

^  Some  of  the  European  police  schools  are  described  by  R.  B.  Fosdick, 
op.  cit.,  pp.  211-226. 

^  See,  for  example,  the  Report  of  the  Senate  Committee  Appointed  to  In- 
vestigate the  Police  Department  of  the  City  of  New  York  (The  Lexow  Commit- 
tee), Albany,  1895,  5  vols.;  Minutes  of  the  Police  Investigation  by  the  Special 
Committee  of  the  New  York  Board  of  Aldermen,  New  York,  1912-1913;  Re- 
port of  the  City  Council  Committee  on  Crime  of  the  City  of  Chicago,  Chicago, 
1915- 


THE   POLICE   FUNCTION  345 

harm  to  the  public  as  some  other  forms  of  corruption,  such  as  the 
granting  of  pubHc  franchises  to  private  corporations  without 
adequate  remuneration,  it  is  nevertheless  a  prolific  source  of 
evil.  It  is  an  essential  part  of  any  widespread  system  of  ''graft" 
in  government,  for  the  corrupt  political  "bosses"  and  officials 
need  the  strong  arm  of  the  police  to  carry  out  most  of  their 
dishonest  designs.  ^ 

The  first  and  foremost  preventive  of  police  corruption  is  the 
promotion  of  honesty  in  the  government  in  general.  Specific 
measures  which  may  be  used  are  to  remove  the  administration 
of  the  pohce  as  far  as  possible  from  partizan  politics,  to  make  the 
tenure  of  office  in  police  positions  permanent,  and  to  make  the 
remuneration  of  the  police  adequate  to  satisfy  ordinary  needs 
and  reasonable  desires,  thereby  diminishing  as  far  as  possible  the 
incentive  to  supplement  their  pay  by  means  of  dishonesty  and 
failure  to  perform  their  duty. 

Evil  Influence  of  Unenforceable  Laws  Against  Vice 

Another  factor  for  police  corruption  in  this  country  has  been 
the  existence  of  numerous  unenforceable  laws.  These  laws  have 
been  enacted  partly  as  a  result  of  the  Puritanical  ideas  which 
are  more  or  less  prevalent  in  this  country,  and  which  have  given 

^  A  first  hand  observer  has  described  the  world  of  graft  and  its  grafters 
in  the  following  graphic  language:  — 

"A  'grafter'  is  one  who  makes  his  living,  and  sometimes  his  fortune,  by 
'grafting.'  He  may  be  a  political  'boss,'  a  mayor,  a  chief  of  police,  a  warden 
of  a  penitentiary,  a  municipal  contractor,  a  member  of  the  town  council,  a 
representative  in  the  legislature,  a  judge  in  the  courts,  and  the  Upper  World 
may  know  him  only  in  his  official  capacity;  but  if  the  Under  World  has  had 
occasion  to  approach  him  for  purposes  of  graft  and  found  him  corrupt,  he 
is  immediately  classified  as  an  '  unmugged '  grafter  —  one  whose  photograph 
is  not  in  the  rogues'  gallery,  but  ought  to  be.  The  professional  thief  is  the 
'mugged'  grafter;  his  photograph  and  Bertillon  measurements  are  known 
and  recorded. 

"The  World  of  Graft  is  wherever  known  and  unknown  thieves,  bribe- 
givers, and  bribe-takers  congregate.  In  the  United  States  it  is  found  mainly 
in  the  large  cities,  but  its  boundaries  take  in  small  county  seats  and  even 
villages.  A  correct  map  of  it  is  impossible,  because  in  a  great  many  places 
it  is  represented  by  an  unknown  rather  than  by  a  known  inhabitant,  by  a 
dishonest  official  or  an  unscrupulous  and  waiy  politician  rather  than  by  a 
confessed  thief,  and  the  geographer  is  helpless  until  he  can  collect  the  facts, 
which  may  never  come  to  light."  (J.  Flynt,  The  World  of  Graft,  New  York, 
1901.) 


346  CRIMINOLOGY 

rise  to  the  desire  to  prohibit  many  vicious  and  so-called  vicious 
practises.  But  they  are  due  perhaps  still  more  to  the  general 
notion  that  almost  anything  in  the  way  of  enforcement  or  of 
prohibition  can  be  accomplished  by  means  of  legislation.  As  a 
comparatively  new  country  addicted  to  hasty  experimentation, 
we  have  not  had  as  much  experience  as  older  countries  which 
would  give  us  national  traditions  concerning  the  folly  of  such 
legislation. 

There  have  been  several  evil  results  from  this  legislative 
tendency  which  are  of  importance  with  respect  to  the  police. 
In  the  first  place,  it  has  created  a  general  disrespect  for  law. 
This  situation  has  inevitably  reacted  upon  the  police  to  make 
them  careless  and  indifferent  to  the  enforcement  of  law  in  gen- 
eral. 

In  the  second  place,  it  has  put  on  the  statute  books  many 
laws  which  are  not  approved  of  by  a  considerable  portion  of  the 
population.  Whenever  the  majority  has  believed  that  a  certain 
form  of  conduct  should  be  prohibited  on  the  ground  that  it  is 
immoral  and  vicious,  it  has  usually  seen  fit  to  do  so,  regardless 
of  th'e  fact  that  a  powerful  minority  might  succeed  in  nullifying 
it  in  practise.  This  situation  has  been  greatly  aggravated  by 
an  enormous  immigration  from  many  countries  differing  con- 
siderably from  each  other  in  culture  and  moral  standards. 
This  immigration  has  created  a  racially  heterogeneous  population 
with  diversified  ideas  as  to  the  morality  of  many  forms  of  con- 
duct. 

In  the  third  place,  this  legislative  tendency  weakens  public 
sentiment  in  behalf  of  the  rights  and  freedom  of  the  individual. 
It  blunts  the  fine  sense  of  respect  for  the  individuality  of  others 
which  permits  the  personality  to  develop  as  spontaneously  as 
possible,  even  though  the  individual  will  frequently  do  himself 
injury  in  so  doing,  in  the  belief  that  a  high  degree  of  freedom  is 
in  the  long  run  preferable  to  a  large  amount  of  regulation.  It 
encourages  the  unthinking  spirit  of  the  mob  which  attempts  to 
force  every  one  into  a  common  mold. 

In  the  fourth  place,  largely  as  a  consequence  of  the  above- 
mentioned  conditions  many  of  these  laws  furnish  an  admirable 
means  of  blackmail  for  the  police.  This  is  because,  while  they 
are  in  the  main  unenforceable,  they  can  be  used  by  the  police 
as  a  club  with  which  to  extort  bribes  and  hushmoney.     For 


THE   POLICE   FUNCTION  347 

example,  a  law  with  respect  to  the  liquor  traffic  or  sabbath  ob- 
servance may  be  so  obnoxious  to  a  large  part  of  a  community 
that  it  would  be  impossible  for  the  police  to  enforce  it  univer- 
sally. But  the  poHce  can  use  the  law  as  a  threat  to  harry  individ- 
ual violators  into  paying  them  tribute  for  refraining  from  ar- 
resting them  and  securing  their  conviction.  There  are  ;iiany 
laws  upon  our  statute  books  which  are  practically  dead  letters 
so  far  as  enforcement  is  concierned,  and  yet  furnish  the  police 
an  enormous  amount  of  unlawful  revenue.^ 

Upon  the  basis  of  these  laws  an  elaborate  system  of  levying 
tribute  upon  their  violators  arises.  A  more  or  less  definite 
tariff  becomes  established  according  to  which  the  liquor  dealer, 
the  gambler,  the  prostitute,  the  theatrical  manager,  etc.,  pay  for 
the  privilege  of  violating  these  laws.  This  tribute  is  collected 
usually  by  patrolmen  or  subordinate  police  officers,  and  is  trans- 
mitted by  them  to  the  higher  police  officials.  Each  member  of 
the  police  force  who  comes  in  contact  with  the  graft  profits  by 
it,  and  thus  a  large  part  of  the  force  is  corrupted. 

Nor  does  the  iniquitous  influence  of  these  laws  necessarily 

^  According  to  the  report  of  the  Chicago  committee  on  crime,  the  profes- 
sional gamblers  in  that  city  were  paying  $50  a  week  for  police  protection 
for  each  of  the  "handbooks"  operated.  As  it  was  estimated  that  there  were 
300  of  these  books,  the  total  amount  paid  annually  to  the  police  in  this  form 
of  graft  alone  would  aggregate  nearly  $800,000.    {Op.  ciL,  p.  166.) 

Goodnow  has  characterized  the  effect  of  these  laws  upon  the  integrity 
of  the  police  as  follows:  — 

"One  of  the  results  of  attempting  to  determine  the  criminality  of  an  act 
by  its  viciousness  has  been  to  force  upon  the  police  of  cities  in  the  United 
States  work  which,  under  the  standards  of  morality  prevailing  in  the  cities, 
it  is  practically  impossible  for  them  to  perform.  .  .  .  Public  opinion  seems 
to  justify  the  passage  of  statutes  upon  the  enforcement  of  which  that  same 
public  opinion  does  not  insist.  The  result  is  a  temptation  for  the  police 
which  human  nature  is  hardly  strong  enough  to  resist.  The  police  force 
becomes  a  means  by  which  the  whole  city  government  is  corrupted.  There 
has  never  been  invented  so  successful  a  'get-rich-quick'  institution  as  is  to 
be  found  in  the  control  of  the  police  force  of  a  large  American  city.  Here 
the  conditions  are  more  favorable  than  elsewhere  to  the  development  of 
police  corruption,  because  the  standard  of  city  morality  which  has  the 
greatest  influence  on  the  police  force,  which  has  to  enforce  the  law,  is  not 
the  same  as  that  of  the  people  of  the  state  as  a  whole  which  puts  the  law 
on  the  statute  book.  What  the  state  regards  as  immoral  the  city  regards 
as  innocent.  What  wonder  then  if  the  city  winks  at  the  selling  by  the 
police  of  the  right  to  disobey  the  law  which  the  city  regards  as  unjustifiable?  " 
,(F.  J.  Goodnow,  Municipal  Government,  New  York,  19 10,  pp.  265-266.) 


348  CRIMINOLOGY 

stop  with  the  pohce  department.  It  has  frequently  happened 
that  some  of  this  graft  has  passed  on  to  officials  in  other  execu- 
tive branches  of  the  government,  to  judges,  and  to  legislators. 
So  that  the  integrity  of  every  branch  of  the  government  has  been 
stained  and  its  efl&ciency  weakened  by  the  influence  of  these 
laws. 

The  responsibility  for  these  laws  does  not  rest  upon  the  legis- 
lators alone,  many  of  whom  indeed  are  well  aware  of  the  folly 
of  this  legislation.  It  must  rest  largely  upon  a  narrow-minded 
but  influential  portion  of  the  public  which  brings  much  pressure 
to  bear  upon  the  legislators  to  enact  such  legislation.  This 
portion  of  the  public  is  represented  through  such  private  organi- 
zations as  societies  for  the  suppression  of  vice,  the  churches  and 
other  religious  organizations,  the  social  hygiene  associations, 
the  anti-saloon  leagues,  and  similar  organizations  of  a  senti- 
mental nature.  Having  secured  the  desired  legislation  this 
portion  of  the  community  sits  back  in  smug  complacency  at 
having  registered  its  protest  at  these  vices  and  alleged  vices 
and  thus  satisfied  its  conscience,  regardless  of  the  fact  that  these 
laws  are  in  the  main  unenforceable,  and  that  they  are  certain 
to  demoralize  to  a  considerable  extent  the  police  and  other 
branches  of  the  government. 

It  would  be  much  preferable  not  to  have  these  laws  at  all, 
since  they  do  no  good  and  are  potent  forces  for  corrupting  and 
debasing  the  police.  It  is  hardly  necessary  to  add  that  they  also 
do  a  vast  amount  of  injury  by  spreading  disrespect  for  law  in 
the  population  at  large,  and  by  making  potential  if  not  actual 
criminals  of  those  who  pay  the  blackmail  and  hushmoney  to  the 
police.  As  a  result  of  placing  the  stigma  of  criminality  un- 
necessarily upon  many  persons  who  may  be  vicious  but  are  not 
criminal  to  start  with,  they  degrade  all  of  them,  and  drive  some 
of  them  to  consort  with  professional  criminals,  and  to  become 
criminal  in  turn. 

The  political  reform  movements  in  the  cities  and  sometimes 
in  the  states  in  this  country  well  illustrate  these  errors  in  the 
treatment  of  vice.  These  movements  are  usually  accompanied 
with  a  good  deal  of  emotional  exaltation.  Under  the  influence 
of  this  state  of  feeling  the  moral  enthusiasm  of  the  reformers 
leads  them  to  pass  drastic  laws  against  the  different  vices  and 
alleged  vices,  and  to  make  abortive  attempts  to  enforce  these 


THE  POLICE  FUNCTION  349 

laws.  These  attempts  invariably  fail  for  the  reasons  which  have 
been  mentioned.  But  what  is  much  worse  is  that  by  getting 
these  unenforceable  laws  upon  the  statute  books  the  reformers 
have  created  powerful  instruments  for  blackmail,  bribery,  and 
police  corruption  when  the  administration  of  these  laws  pass  into 
the  hands  of  those  who  are  prone  to  commit  these  crimes.^ 

Ugly  and  harmful  though  the  genuine  forms  of  vice  are,  it  is 
not  to  be  expected  that  they  can  be  abolished  in  a  day.  The 
genuine  forms  of  vice  are  those  that  detract  from  the  spontaneous 
expression  of  human  nature,  in  so  far  as  this  expression  is  com- 
patible with  the  conditions  of  social  life.  Many  of  the  modes 
of  conduct  alleged  to  be  vicious  by  the  moral  reformers  cannot 
be  regarded  as  such  when  judged  by  the  above  criterion.  But 
neither  the  genuine  nor  the  alleged  vices  can  be  uprooted  at 
once,  for  they  arise  out  of  fundamental  traits  of  human  nature 
and  of  the  material  and  social  conditions  in  which  men  and 
women  live.  Inasmuch  as  human  beings  are  prone  to  resent 
wholesale  attempts  to  make  them  moral  when  they  are  not 
trespassing  in  an  obvious  manner  upon  the  rights  of  others, 
there  is  usually  a  serious  reaction  after  the  failure  of  such  an 
attempt  which  serves  as  a  setback  to  social  progress. 

They  have  learned  to  deal  more  wisely  with  vice  in  Europe. 
There  they  do  not  usually  attempt  to  enforce  morality  in  private 
matters  by  means  of  the  law.  In  fact,  even  in  some  of  the  au- 
tocratically and  oligarchically  governed  countries  there  is  more 
liberty  in  many  personal  matters  than  there  is  in  this  country. 
There  are  also  fewer  unenforceable  laws  to  corrupt  the  police, 
and  this  is  one  reason  why  the  European  police  is  on  the  whole 
more  honest  than  our  police.^ 

^  See,  for  descriptions  from  practical  experience  of  the  harmful  effects  of 
reform  movements  in  our  cities,  A.  Hodder,  A  Fight  for  the  City,  1903; 
B.  Whitlock,  On  the  Enforcement  of  Law  in  Cities,  Indianapolis,  1913. 

See  especially  in  Hodder's  book  Chapter  V  entitled  "The  Alliance  be- 
tween Puritan  and  Grafter,"  in  which  he  shows  how  the  Puritan  by  his 
uncompromizing  position  unconsciously  helps  the  grafter. 

See  also  two  articles  by  W.  J.  Gaynor  on  the  lawlessness  of  the  police,  in 
the  North  American  Review,  Vol.  CLXXVI,  1903;  and  an  article  by  Sydney 
Brooks  entitled  Tammany  Again,  in  the  Fortnightly  Review,  Dec,  1903. 

2  Fosdick  calls  attention  to  this  repeatedly,  as,  for  example,  in  the  follow- 
ing passage :  — 

"Perhaps  the  most  important  safeguard  against  police  corruption  is  nega- 
tive in  character.   The  European  police  are  not  called  upon  to  enforce  stand- 


3  so  CRIMINOLOGY 

The  above-mentioned  conditions  have  been  the  principal 
causes  of  the  so-called  "police  system"  in  this  country.  By 
this  term  is  ordinarily  meant  an  organized  system  within  the 
police  department  for  gathering  and  apportioning  the  blackmail 
levied  upon  the  violators  of  the  law.  These  offenders  include 
not  only  the  violators  of  the  laws  against  vice,  but  also  habitual 
and  professional  criminals  with  whom  the  police  are  frequently 
in  collusion.  The  details  of  the  "police  system"  have  been 
exposed  and  laid  bare  in  many  of  our  cities  by  investigating 
committees,  in  the  course  of  political  campaigns,  and  in  the 
trial  of  certain  cases  in  the  criminal  courts.^  These  revelations 
have  indicated  the  extent  to  which  the  safety  of  life  and  property 
in  this  country  is  menaced  by  police  corruption. 

Homicide  in  the  United  States 

It  is,  of  course,  impossible  to  measure  accurately  the  effect  of 
police  inefficiency  and  dishonesty  upon  the  extent  of  crime.  This 

ards  of  conduct  which  do  not  meet  with  general  public  approval.  There 
is  little  attempt  to  make  a  particular  code  of  behavior  the  subject  of  general 
criminal  legislation.  The  high  moral  standards  of  a  few  people  are  not  the 
legal  requirements  of  the  state.  Only  occasionally  is  there  any  movement 
to  place  upon  the  statute  books  laws  which  serve  only  to  satisfy  the  con- 
sciences of  those  responsible  for  them.  This  is  a  subject  worthy  of  more 
attention  than  can  be  given  in  these  pages.  It  strikes  deep  into  the  heart 
of  the  police  problem."    (R.  B.  Fosdick,  op.  cit.,  p.  379.) 

1  For  example,  in  191 2  the  professional  gambler  Rosenthal  was  murdered 
for  threatening  to  "squeal"  on  the  police  in  New  York  City.  The  police 
lieutenant  Becker  and  his  accomplices  were  electrocuted  for  this  murder. 
In  the  course  of  their  trial  much  evidence  was  produced  with  regard  to  the 
"police  system"  in  New  York. 

The  Chicago  committee  on  crime  speaks  of  the  collusion  between  the  police 
and  the  professional  criminals  as  follows :  — 

"There  can  be  no  doubt  that  one  of  the  chief  causes  of  crime  in  Chicago 
is  that  members  of  the  police  force,  and  particularly  of  the  plain  clothes 
staff,  are  hand  in  glove  with  criminals.  Instead  of  punishing  the  criminal, 
they  protect  him.  Instead  of  using  the  power  of  the  law  for  the  protection 
of  society,  they  use  it  for  their  own  personal  profit.  They  form  a  working 
agreement  with  pickpockets,  prowlers,  confidence  men,  gamblers,  and  other 
classes  of  offenders.  The  basis  of  this  agreement  is  a  division  of  profits  be- 
tween the  lawbreaker  and  the  public  official.  The  exact  extent  of  this  sys- 
tem it  is  impossible  to  determine,  but  there  is  no  doubt  that  its  ramifica- 
tions are  so  wide  as  to  cripple  the  machinery  for  the  enforcement  of  the 
law."    {iDp.  cit.,  p.  184.) 


.  THE  POLICE  FUNCTION  35I 

is  particularly  difficult  with  respect  to  the  crimes  against  prop- 
erty, because  it  is  impossible  to  ascertain  the  total  amount 
which  is  stolen.  It  is  more  feasible  with  respect  to  crimes  against 
the  person,  and  especially  homicide,  since  most  of  the  homicides 
are  known.  It  is,  therefore,  of  some  interest  in  this  connection 
to  mention  a  few  comparative  statistics  of  homicide.  In  1913 
there  were  in  Chicago  262  arrests  and  arraignments  for  murder, 
in  New  York  131,  and  in  London  36.^  It  has  been  estimated 
from  mortality  statistics  in  census  reports  and  from  other 
sources  of  information  that  during  the  decade  ending  with  1909 
the  average  homicide  rate  in  the  registration  area  in  the  United 
States  was  4.3  per  100,000  of  population,  as  against  an  average 
homicide  rate  in  England  and  Wales  of  0.9  per  100,000  of  popula- 
tion. "  In  other  words,  there  was  an  excess  of  378  per  cent,  in  the 
homicide  mortality  of  the  United  States  over  the  corresponding 
homicide  record  of  England  and  Wales.  ^ 

The  excessive  amount  of  homicide  in  this  country  is  probably 
due  in  part  to  disregard  for  human  life,  which  is  in  turn  due  at 
least  in  part  to  the  new  and  somewhat  unsettled  conditions  in 
this  country.  But  it  is  certainly  due  to  a  considerable  extent  to 
the  inefficiency  of  the  police.  This  inefficiency  has  unfortunately 
been  seconded  often  by  the  weakness  of  the  courts  in  repressing 
crime  on  account  of  technicalities  in  the  procedure. 

Preliminary    Detention,    Provisional    Liberation,    and 
Indemnification 

In  order  that  the  police  may  be  able  to  do  their  work  effec- 
tively it  is  essential  that  they  should  be  given  more  or  less  power. 
They  must  be  able  to  arrest  and  detain  suspected  persons.    But 

^  Report  of  the  Chicago  Crime  Committee,  p.  9. 

*  F.  L.  Hoffman,  cited  in  the  Jour.  Crim.  Law,  Vol.  Ill,  No.  5,  Jan.,  1913, 
p.  676. 

In  a  more  recent  article  Hoffman  has  estimated  that  the  mortality  from 
homicide  in  the  registration  states  of  the  U.  S.,  1910-1914,  was  2.9  per 
100,000  of  population  in  the  New  England  states,  4.8  in  the  Middle  Atlantic 
states,  13. 1  in  the  Southern  states,  4.2  in  the  North  Central  states,  8.7  in 
the  South  Central  states,  and  10.6  in  the  Western  states.  In  thirty-one  of 
the  largest  cities  the  rate  was  5.0  from  1895  to  1904,  and  8.1  from  1905  to 
1914.  In  1915  the  rate  in  these  cities  was  8.3,  the  highest  rate  being  85,9 
in  Memphis,  Tenn.  {The  Spectator,  Vol.  XCVII,  No.  25,  Dec.  21,  1916, 
pp.  278-280.) 


352  CRIMINOLOGY 

these  powers  must  be  safeguarded  as  much  as  possible  against 
their  abuse  and  misuse.  There  is  probably  no  jurisdiction  in  the 
world  where  a  policeman  does  not  have  the  power  to  arrest  a 
person  who  commits  or  attempts  to  commit  a  crime  in  his 
presence.  Furthermore,  he  is  usually  permitted  to  arrest  a 
person  suspected  of  having  committed  a  serious  crime,  such  as  a 
felony,  even  though  he  has  not  witnessed  it.  But  under  other 
circumstances  he  is  usually  not  empowered  to  arrest  unless  he 
has  a  warrant,  or  written  mandate,  which  has  been  issued  by  a 
judge.  ^ 

Having  made  an  arrest  he  is  usually  required  to  bring  the 
person  in  custody  before  a  judge  within  a  limited  period  of 
time,  as,  for  example,  within  twenty-four  hours.  The  accused 
person  must  then  be  tried  or  held  for  trial  by  the  judge.  Other- 
wise he  must  be  released  from  custody.  The  common  law  writ  of 
habeas  corpus  is  still  another  safeguard  against  unlawful  deten- 
tion. This  writ  is  issued  by  a  court  and  commands  that  a  person 
in  confinement  be  brought  before  it  in  order  to  determine  the 
legality  of  the  confinement. 

The  principal  measure  used  to  make  preliminary  detention 
unnecessary  is  provisional  liberation.  The  granting  of  provi- 
sional liberation  depends  partly  upon  the  law  and  partly  on  the 
judge.  The  law  specifies  which  crimes  with  which  persons  in 
custody  are  accused  are  bailable,  and  which  crimes  are  not 
bailable.  But  a  certain  amount  of  discretionary  power  is  usually 
left  to  the  judge.  Furthermore,  liberation  on  bail  may  some-' 
times  be  granted  by  police  officials.  Liberation  on  bail  depends 
upon  the  giving  of  security  by  sureties  or  by  the  prisoner  himself 
for  the  reappearance  of  the  prisoner. 

In  some  jurisdictions  the  judge  may  under  certain  circum- 
stances release  the  prisoner  upon  his  own  recognizance  without 
requiring  any  security  in  the  way  of  bail.  Furthermore,  it  is 
now  becoming  customary  to  obviate  any  preliminary  detention 
whatever  in  minor  cases  by  issuing  a  summons  to  appear  in 
court  at  the  proper  time  without  making  any  arrest. 

Persons  undergoing  preliminary  detention  should  be  given  the 
best  possible  treatment.  They  should  not  be  imprisoned  with 
convicted  criminals  as  is  now  done  in  most  places,  but  should  be 

^  See,  for  example,  the  New  York  State  Code  of  Criminal  Procedure,  Sec- 
tions 145-221. 


THE  POLICE  FUNCTION  353 

detained  in  a  place  not  a  prison  and  much  more  comfortable 
than  an  ordinary  prison.  This  is  essential  not  only  in  justice  to 
the  accused,  who  are  presumed  to  be  innocent  until  found 
guilty,  but  also  to  impress  upon  the  minds  of  the  public  the  dis- 
tinction between  the  unconvicted  prisoners  and  the  convicted 
criminals. 

Witnesses  should  not  be  detained  except  under  order  of  a  court 
and  when  there  is  good  reason  to  believe  that  their  testimony 
cannot  be  secured  without  such  detention.  They  shoiild  never 
be  confined  in  a  prison,  but  in  a  special  house  of  detention.  They 
should  be  remunerated  by  the  state  for  the  time  they  have  lost. 

Reparation  should  be  made  as  far  as  possible  to  the  innocent 
persons  who  suffer  the  evils  of  preliminary  detention  and  pros- 
ecution. At  present  it  is  possible  for  the  person  who  is  acquitted 
to  sue  the  police  and  the  complainant  for  damages  for  malicious 
or  unreasonable  prosecution.  If,  however,  the  policeman  or  the 
complainant  has  no  property,  such  a  suit  is  of  no  value,  even  if 
successful.  In  this  country  there  is  no  indemnification  by  the 
state  for  unjustifiable  prosecution  or  for  unjust  conviction.  And 
yet  there  can  be  no  question  about  the  right  of  the  victim  of 
unjustifiable  prosecution  or  conviction  to  receive  reparation. 
The  state  should  compensate  the  innocent  victim  of  its  police 
and  judicial  functions  just  as  much  as  it  compensates  property 
owners  when  it  exercizes  the  power  of  eminent  domain.  A 
pecimiary  compensation  is  the  least  it  can  give,  for  it  can  never 
make  reparation  for  the  humiliation,  dread,  and  other  forms  of 
mental  anguish  and  physical  suffering  caused  by  unjustifiable 
prosecution,  and  imjust  conviction  and  punishment. 

Furthermore,  it  is  expedient  for  the  state  to  make  indemnifi- 
cation in  order  to  prevent  as  far  as  possible  the  rankling  sense  of 
injustice  sure  to  arise  in  the  minds  of  its  victims  which  may  at 
some  time  or  other  be  turned  against  the  state.  Indemnification 
wovdd  also  cause  the  state  to  exercize  greater  precautions 
against  error  in  the  trial  of  accused  persons.  Indemnification  is 
now  given  in  different  ways  and  in  varying  degrees  in  several 
European  countries,  such  as  Switzerland,  Portugal,  Sweden, 
Norway,  France,  Austria,  and  Germany.^ 

^  An  excellent  summary  of  this  legislation  is  given  in  the  following  article: 
E.  M.  Borchard,  European  Systems  of  Stale  Indemnity  for  Errors  of  Criminal 
Justice,  in  the  Jour.  Crim.,  Law,  Vol.  Ill,  No.  s,  Jan.,  1913,  pp.  684-718. 


354  CRIMINOLOGY 

The  judges  who  come  most  closely  into  touch  with  the  work  of 
the  police  are  the  magistrates  in  the  lowest  courts,  frequently 
called  the  police  courts.  These  magistrates  should  watch  the 
police  carefully  and  restrain  them  from  any  unlawful  use  of  their 
power.  It  is  sometimes  asserted  by  representatives  of  the  police 
that  they  are  restrained  too  much  by  these  magistrates,  so  that 
they  are  greatly  hampered  in  their  work  of  suppressing  crime. 
But  in  all  probabihty  there  is  more  danger  of  the  magistrates 
restraining  the  poUce  too  little  than  too  much.^ 

^  The  police  court  in  connection  with  the  work  of  the  police  has  been  dis- 
cussed from  different  points  of  view  in  various  books,  as,  for  example,  the 
following:  W.  McAdoo,  Guarding  a  Great  City,  New  York,  1906;  H.  R.  P. 
Gammon,  The  London  Police  Court,  London,  1907;  H.  L.  Adam,  Police 
Work  from  Within,  London,  191-?. 


PART  V 
PENOLOGY 


CHAPTER  XXII 
THE  ORIGIN  AND  EVOLUTION  OF  PUNISHMENT 

The  objects  of  punishment:  vengeance;  elimination;  restraint;  deterrence; 
restitution;  reformation;  etc.  —  The  varieties  of  penalties  —  Imprison- 
ment —  Transportation  —  Poetic  penalties  —  The  scope  of  punish- 
ment—  The  severity  of  punishment:  influence  of  despotism,  war, 
magic,  and  religion  —  The  Inquisition  —  The  modern  humanitarian 
movement:  the  Renaissance;  the  industrial  revolution;  the  division  of 
labor;  modern  science. 

In  Chapters  II  and  III  have  been  discussed  the  factors  which 
give  rise  to  the  forms  of  social  reaction  ordinarily  called  punish- 
ment. Back  of  these  punitive  reactions  lie  the  emotions  of  fear 
and  anger,  and  the  reactions  themselves  acquire  their  dynamic 
force  primarily  from  the  protective  and  combative  instincts 
which  these  emotions  accompany.  The  emotions  and  instincts 
are  in  the  first  instance  individual.  But  when  they  are  aroused 
in  many  members  of  a  group,  they  tend  to  reenforce  each  other 
and  to  lead  to  cooperative  action. 

I  have  stated  that  these  social  reactions  have  been  observed 
in  some  animal  species,  where  the  members  of  a  group  have  at- 
tacked one  of  their  fellows  who  has  offended  them,  and  have 
injured  or  killed  it,  or  have  driven  it  away.  Presumably  the 
same  kind  of  spontaneous  reactions  took  place  among  the 
earliest  men.  Among  the  primitive  races  which  have  been 
observed  these  reactions  have  become  somewhat  organized  and 
conventionalized.  They  are  rationalized  and  justified  by  means 
of  a  philosophy  which  is  largely  religious  and  magical  in  its 
nature.  In  many  cases  the  paternal  authority  has  been  utilized 
to  organize  the  penal  function  under  a  patriarchal  form.^  In 
some  cases  the  patriarchate  probably  furnished  the  starting 
point  for  the  centralization  of  authority  under  the  chieftain, 
priest,  or  king. 

When  the  art  of  writing  was  discovered  and  the  state  came 

1  Cf.  J.  Makarewicz,  'Evolution  de  la  peine,  in  the  Arch,  d'anth.  critn., 
Vol.  XIII,  March,  1898,  pp.  129-177. 


358  CRIMINOLOGY 

into  existence,  written  law  became  possible.  Punishment  now 
reached  its  full  development  as  a  definitely  organized,  conscious 
reaction  against  what  injures  or  is  presumed  to  injure  society.^ 
The  state,  first  under  a  monarchical  and  then  under  a  democratic 
form,  acquired  much  power  to  enforce  punishment.  The  law 
now  stated  in  great  detail  the  nature  and  purposes  of  punish- 
ment. 

The  Objects  of  Punishment 

Among  primitive  peoples  almost  the  only  penalties  appear  to 
have  been  mutilation,  death,  and  banishment.^  Generally 
speaking,  the  object  of  primitive  penalties  was  to  get  rid  of  the 
culprit  who  had  incurred  the  wrath  and  had  aroused  the  fear  of 
the  community.  This  object  was  attained  by  means  of  death  or 
banishment  into  exile,  which  frequently  meant  death.  In  the 
higher  stages  of  culture  the  penalties  became  more  varied,  partly 
because  other  objects  of  punishment  came  to  be  recognized,  but 
also  because  a  larger  number  of  punitive  methods  became 
feasible. 

There  is  not  the  space  to  describe  the  many  diflferent  kinds  of 
penalties  which  have  been  used  in  barbarous  and  civilized 
societies.^    But  a  cursory  survey  of  the  principal  varieties  will 

1  Westermarck  defines  punishment  as  follows:  —  "  By  punishment  I  do  not 
understand  here  every  sufi'ering  inflicted  upon  an  offender  in  consequence 
of  his  offence,  but  only  such  suffering  as  is  inflicted  upon  him  in  a  definite 
way  by,  or  in  the  name  of,  the  society  of  which  he  is  a  permanent  or  tem- 
porary member."  (E.  Westermarck,  The  Origin  and  Development  of  the 
Moral  Ideas,  Vol.  I,  London,  1906,  p.  169.) 

Oppenheimer  defines  punishment  as  follows:  —  "Punishment  is  an  evil  in- 
flicted upon  a  wrongdoer,  as  a  w^rongdoer,  on  behalf  and  at  the  discretion 
of  the  society,  in  its  corporate  capacity,  of  which  he  is  a  permanent  or  tem- 
porary member."  (H.  Oppenheimer,  The  Rationale  of  Punishment,  London, 
1913,  p.  4.) 

*  Primitive  penalties  have  been  described  in  numerous  descriptive  writ- 
ings about  primitive  peoples,  and  in  many  treatises  upon  the  evolution  of 
punisliment.  In  the  above-mentioned  writings  of  Westermarck,  Oppen- 
heimer, and  Makarewicz  are  to  be  found  brief  discussions  of  this  subject. 

'These  penalties  have  been  described  in  many  historical  and  other 
works,  of  which  I  will  mention  the  following:  —  G.  Ives,  A  History  of  Penal 
Methods,  London,  1914;  L.  O.  Pike,  A  History  of  Crime  in  England,  Lon- 
don, 1873-1876,  2  vols.,  W.  Andrews,  Punishments  in  the  Olden  Times, 
London,  1881;  J.  F.  Stephen,  A  History  of  the  Criminal  Law  of  England, 
London,  1883,  3  vols.;  E.  F.  Du  Cane,  The  Punishment  and  Prevention  of 


THE  ORIGIN  AND  EVOLUTION  OF  PUNISHMENT  359 

reveal  most  of  the  objects  which  these  penalties  have  been  in- 
tended to  attain.  The  fundamental  object  psychologically 
probably  is  to  wreak  vengeance  upon  the  offender.  The  primary 
avowed  object  doubtless  is  to  get  rid  of  the  culprit  who  endangers 
the  public.  Along  with  this  object  frequently  goes  a  desire  to 
injure  the  guilty  one  for  the  evil  which  he  has  caused. 

But  other  utilitarian  objects  have  appeared  and  have  in- 
fluenced the  character  of  punishment.  The  purpose  of  deterring 
others  from  committing  these  offenses  plays  an  important  part. 
The  idea  of  restitution,  in  so  far  as  that  is  possible,  is  embodied 
in  many  penalties.  The  temporary  restraint  of  the  criminal 
is  the  object  of  some  penalties.  The  utilization  of  the  labor  of 
the  offender  is  effected  by  some  forms  of  punishment.  A  rev- 
enue to  the  state  is  derived  from  some  punishments.  A  poetic 
relation  is  to  be  discerned  between  some  offenses  and  the  pen- 
alties prescribed  for  them.  In  recent  times  the  purpose  of 
changing  the  character  of  the  criminal  by  means  of  penal 
measures,  namely,  reformation,  has  been  playing  an  increasingly 
important  role. 

The  Varieties  of  Penalties 

Capital  punishment  has  been  inflicted  in  many  different  ways. 
Among  these  may  be  mentioned  hanging,  burning,  beheading, 
boiling,  pressing,  poisoning,  flaying,  dismemberment,  precipita- 
tion from  a  height,  breaking  on  a  wheel,  crucifixion,  drowning, 
stoning,  suffocation,  starving,  electrocution,  etc.  In  many  of 
these  cases  it  has  been  the  intention  to  cause  the  victim  as  much 
suffering  as  possible  before  death  supervened.  In  fact,  in  the 
past  capital  punishment  was  usually  preceded  by  torture. 

When  torture  has  not  resulted  in  death,  it  has  frequently  re- 
sulted in  mutilation  for  life.  The  purpose  of  this  mutilation  was 
usually  not  only  to  cause  suffering  to  the  offender,  but  also  to 
furnish  the  public  horrible  examples  of  the  consequences  of 
penality. 

Banishment,  when  practised  by  primitive  peoples,  usuaUy 
meant  death,  because  the  offender  was  driven  into  the  hands  of 

Crime,  London,  1885;  F.  H.  Wines,  Punishtnenl  and  Reformation,  New  York, 
1895;  C.  Desmaze,  Les  p6nalitis  anciennes  en  France,  Paris,  1866;  F.  Helbing, 
Die  Torltir,  Geschichte  der  Falter  im  Kriminal-verfahren  alter  Volker  und  Zeiten, 
Berlin,  1902,  2  vols. 


360  CRIMINOLOGY 

hostile  groups,  or  into  the  wilderness  where  he  was  ahnost  cer- 
tain to  perish  from  starvation  or  as  the  prey  of  wild  beasts. 
When  the  state  came  into  existence,  banishment  meant  exile 
from  the  territory  of  the  state.  Sometimes  when  the  offender 
could  not  be  captured,  he  was  declared  an  outlaw  to  be  punished 
by  death  or  otherwise  if  captured.  So  that  outlawry  constituted 
a  form  of  banishment  from  the  populated  areas  within  the  state. 

When,  as  a  result  of  the  evolution  of  agriculture  and  industry, 
labor  became  valuable,  offenders  were  preserved  and  made 
slaves  or  serfs.  They  were  set  to  work  to  till  the  soil,  to  row  in 
galleys,  etc.  Later,  when  the  prison  system  came  into  existence, 
they  were  forced  to  work  in  the  prisons,  and  to  produce  objects 
of  value.  At  the  present  time  their  labor  is  sometimes  used 
outside  of  as  well  as  inside  penal  institutions. 

The  idea  of  restitution  in  penal  treatment  appeared  many 
centuries  ago.  In  the  Anglo-Saxon  law  it  became  possible  for 
the  offender  to  compound  his  crime  by  the  payment  of  bot  or 
wergild.  Later  the  principle  of  restitution  of  stolen  property  and 
reparation  for  bodily  injury  passed  largely  into  the  civil  law, 
where  it  is  administered  mainly  under  the  law  of  torts.  It  is 
perhaps  not  sufficiently  applied  by  the  criminal  law  today. 
This  is  a  principle  in  the  application  of  which  the  civil  and  the 
criminal  law  should  cooperate  more  fully  than  they  do  at  present. 
Indeed,  exemplary  damages  as  granted  by  the  civil  courts 
strongly  resemble  a  form  of  penal  treatment. 

The  practise  of  fining,  which  is  much  used  in  modem  criminal 
law,  is  somewhat  related  to  penal  restitution.  The  fine  is  fre- 
quently supposed  to  represent  in  a  measure  the  injury  which 
has  been  done  to  the  pubhc  by  the  crime.  But  the  fine  is  usually 
paid  to  the  state,  while  the  individual  victim  of  the  offender 
receives  nothing  in  the  way  of  restitution.  So  that  fining  con- 
stitutes an  exceedingly  inadequate  appHcation  of  the  principle 
of  restitution. 

Punishment  by  shame  has  frequently  been  used  in  the  past. 
Among  primitive  peoples  punishment  by  ridicule  was  frequently 
used.  During  the  last  few  centuries  have  been  used  such  punish- 
ments as  the  pillory,  the  stocks,  branding,  the  tumbril  or  wagon 
upon  which  the  offender  was  exposed,  the  cucking  stool  (cathedra 
stercoris)  or  chair  upon  which  the  offender  was  exhibited  in 
public.     Two  other  purposes  doubtless  played  a  part  in  the 


THE   ORIGIN  AND  EVOLUTION   OF   PUNISHMENT  36 1 

application  of  these  penalties,  namely,  their  deterrent  influence 
upon  the  public,  and  in  order  to  make  known  these  offenders  to 
the  public,  who  could  thereafter  beware  of  them.  This  sort  of 
punishment  has  fallen  largely  into  desuetude  in  modem  times, 
partly  for  humanitarian  and  partly  for  other  reasons. 

Imprisonment 

Imprisonment  for  purposes  of  detention  has  been  used  for  a 
long  time.  But  imprisonment  as  a  method  of  penal  treatment 
has  not  been  much  used  until  comparatively  recent  times.  Im- 
prisonment did  not  attain  great  importance  as  a  penal  measure 
before  the  seventeenth  or  eighteenth  century.  It  received  its 
greatest  development  during  the  nineteenth  century.-^ 

Dungeons  in  castles  and  forts  and  other  kinds  of  prisons  have 
long  existed.  But  these  were  ordinarily  used  merely  as  places  of 
temporary  detention  for  criminals  and  political  prisoners.  Under 
the  unstable  conditions  of  the  past  it  was  not  easy  to  keep  of- 
fenders under  duress  for  long  periods  of  time.  War  and  other 
disturbances  rendered  social  conditions  so  unstable  as  to  make 
it  difficult  to  maintain  permanent  places  of  incarceration. 

Furthermore,  imprisonment  was  not  sufficiently  immediate 
and  drastic  as  a  form  of  punishment  to  meet  the  needs  of  the 
past.  Consequently,  ancient  penalties  were  ordinarily  summary 
in  character,  and  did  not  require  for  their  application  the  long 
delay  of  imprisonment.  But  in  modern  times  it  has  become  the 
principal  form  of  penal  treatment.  I  shall,  therefore,  describe 
the  prison  system  at  considerable  length  in  a  later  chapter. 

In  the  early  days  of  the  prison  system  the  living  conditions 
in  the  prisons  were  very  bad.  Ordinarily  the  prisons  were  over- 
crowded. Small  provision  was  made  in  the  way  of  food,  sleeping 
accommodations,  and  sanitary  conveniences.  Little  attempt 
was  made  to  segregate  the  different  classes  of  prisoners.  Con- 
sequently, old  and  young,  male  and  female,  hardened  criminals 
and  youthful  beginners  in  crime,  the  guilty  and  the  innocent, 
debtors,  paupers,  and  the  insane  were  mingled  together  in  the 

^  See,  for  brief  accounts  of  the  evolution  of  the  prison  system,  G.  Ives, 
A  History  of  Penal  Methods,  London,  1914;  E.  F.  Du  Cane,  The  Punishment 
and  Prevention  of  Crime,  London,  1885;  F.  H.  Wines,  Punishment  and  Refor- 
mation, New  York,  1895. 


362  CRIMINOLOGY 

prisons.     Little  attempt  was  made  to  provide  work  for  the 
prisoners  or  to  keep  them  occupied  in  any  other  way. 

These  horrible  conditions  aroused  the  efforts  of  prison  re- 
formers like  John  Howard,^  Samuel  Romilly,  and  Elizabeth  Fry, 
who,  during  the  latter  part  of  the  eighteenth  century  and  the 
early  part  of  the  nineteenth  century,  endeavored  to  better  these 
conditions.^  These  prison  conditions  led  inevitably  to  the 
physical  degeneration  and  the  moral  degradation  of  their  in- 
mates, and  through  them  had  a  baneful  effect  upon  the  public 
at  large. ^  It  was,  however,  difficult  to  interest  the  public  in 
conditions  so  remote  from  their  customary  activities.  The 
methods  used  by  these  reformers  were  mainly  sentimental, 
philanthropic,  and  religious  in  their  character,  and  could  not, 
therefore,  be  very  effective  in  reaching  the  fundamental  causes 
of  these  prison  evils.    Consequently,  it  is  doubtful  if  these  re- 

^  J.  Howard,  The  State  of  the  Prisons  in  England  and  Wales,  2d  ed.,  War- 
rington, 1780;  An  Account  of  the  Principal  Lazarettos  in  Europe,  Warring- 
ton, 1789. 

2  W.  H.  Render,  Through  Prison  Bars,  The  Lives  and  Labours  of  John 
Howard  and  Elizabetfi  Fry,  London,  1894  (?). 

*  The  state  of  the  prisons  in  England  in  the  eighteenth  century,  as  indi- 
cated by  Howard's  writings,  has  been  described  as  follows: — 

"Deprived  of  the  very  essentials  of  life  —  air,  water,  and  food  —  the 
physical  condition  of  prisoners  was  wretched  in  the  extreme.  But  the  moral 
atmosphere  in  which  they  lived  was  still  worse.  No  attempt  was  made  to 
classify  or  separate  them.  Untried  prisoners  and  debtors,  who  formed  the 
bulk  of  the  permanent  prison  population,  were  herded  with  thieves,  high- 
waymen, and  murderers,  and  all  alike  lived  in  enforced  idleness,  which  was 
a  leading  feature  of  the  prison  administration.  In  the  day  rooihs  men  and 
women,  sick  and  healthy,  sane  and  insane,  veterans  in  crime,  and  youthful 
offenders  gambled,  drank,  swore,  concocted  burglaries,  and  even  manufac- 
tured counterfeit  coin."  (R.  F.  Quinton,  Crime  and  Criminals,  1876-igio, 
London,  1910,  p.  169.) 

"It  is  not  surprising  that  under  these  conditions  the  germs  of  disease  were 
constantly  present  in  the  gaols  throughout  the  country,  and  that  they 
should  have  become  extensive  laboratories  for  the  cultivation  and  dissemina- 
tion of  fever.  This  actually  occurred,  and  that  particular  fever  which  orig- 
inates in  overcrowding,  filth,  and  poverty,  was  so  constantly  breaking  out, 
that  it  came  to  be  called  'gaol  fever.'    It  was  endemic  in  many  prisons. 

"The  ravages  of  the  disease,  however,  were  far  greater  outside  than  in- 
side. The  clothing  and  bodies  of  prisoners  seemed  to  be  saturated  with  the 
poison.  They  carried  it  with  them  into  Court,  into  their  homes,  into  towns 
and  villages,  and  even  into  our  fleets,  spreading  infection  everywhere." 
{Op.  cit.,  pp.  1 70-1 7 1.) 


THE   ORIGIN  AND  EVOLUTION   OF   PUNISHMENT  ^6^ 

formers  had  much  influence  in  bettering  prison  conditions,  how- 
ever worthy  their  motives  may  have  been. 

Another  group  of  reformers  who  had  considerable  influence 
upon  prison  reform  were  the  philosophers  and  scientists  of  the 
eighteenth  century.  Especially  noteworthy  among  these  re- 
formers were  the  Encyclopedists  who  had  much  to  do  with 
bringing  about  the  French  Revolution.  While  their  influence 
upon  prison  reform  was  not  so  direct  as  that  of  the  prison  re- 
formers represented  by  Howard,  it  was  probably  greater  in  the 
long  run,  for  they  were  largely  responsible  for  the  modern 
humanitarian  movement  which  has  been  the  principal  factor 
in  ameliorating  the  treatment  of  the  criminal. 

The  Italian  criminologist  Beccaria  was  the  representative  of 
this  group  of  eighteenth  century  thinkers  who  devoted  special 
attention  to  crime  and  the  criminal.  In  his  writings  he  advo- 
cated with  great  skill  many  humanitarian  reforms  in  criminal 
law  and  procedure  and  in  penal  treatment.  Others  who  may  be 
mentioned  are  Voltaire  and  Montesquieu. 

Transportation 

For  a  time  an  effort  was  made  to  relieve  the  pressure  upon  the 
prisons  by  means  of  transportation.  The  discoveries  during  the 
fifteenth  and  sixteenth  centuries  of  vast  areas  of  hitherto  un- 
known and  almost  uninhabited  land  furnished  good  facilities 
for  this  form  of  banishment.  At  first  it  was  customary  to  trans- 
port convicts  to  colonies  where  their  labor  was  sold  to  the  colon- 
ists. So  that  the  convict  labor  aided  somewhat  in  building  up 
the  new  colonies.  But,  on  the  other  hand,  this  system  intro- 
duced an  undesirable  element  into  the  colonies  which  the  colon- 
ists naturally  feared  and  resented.  Furthermore,  it  established 
a  partially  enslaved  class  which  was  inconsistent  with  the  lib- 
ertarian ideas  of  most  of  the  colonists.  Consequently,  as 
rapidly  as  the  colonies  won  their  independence  of  the  mother 
coimtries,  or  became  sufficiently  powerful  to  refuse  to  admit 
convict  laborers,  it  became  necessary  to  adopt  other  methods 
of  transportation. 

When  it  was  no  longer  possible  to  transport  convicts  to  the 
colonies,  penal  colonies  were  established  in  regions  as  yet  un- 
colonized.     England   estabhshed  penal   colonies   in  Australia 


364  CRIMINOLOGY 

and  Tasmania,  France  in  New  Caledonia  and  Guiana,  Italy  in 
Northeastern  Africa,  Russia  in  Siberia  and  Saghalien,  etc.  In 
the  early  days  of  this  form  of  transportation  prisoners  were 
treated  ordinarily  with  extreme  harshness  and  cruelty  in  the 
convict  ships  and  penal  colonies. 

In  course  of  time  this  form  of  transportation  also  was  gradu- 
ally abandoned.  Sometimes  this  was  because  colonies  grew 
up  in  the  vicinity  of  the  penal  settlements,  and  would  no  longer 
tolerate  the  penal  colonies.  But  transportation  was  abandoned 
also  because  cellular  confinement  and  penal  servitude  were 
adopted  as  methods  of  punishment  in  the  mother  countries. 

Transportation  is  a  modern  form  of  the  ancient  penalty  of 
exile  or  banishment.  It  was  to  be  expected  that  as  the  newly 
discovered  lands  have  become  more  or  less  settled  and  popu- 
lated this  form  of  punishment  would  disappear.  Today  penal 
colonies  to  which  convicts  are  transported  are  maintained  by 
only  a  few  countries. 

Poetic  Penalties 

Poetic  penalties,  which  are  related  by  similarity  or  in  some 
other  direct  fashion  to  the  crimes  they  punish,  have  frequently 
been  used  in  the  past.  The  tendency  to  impose  these  poetic 
penalties  has  much  the  same  psychological  basis  as  sympathetic 
magic.  A  resemblance,  usually  superficial  in  its  character,  or 
some  other  apparent  relation  is  noted  between  an  offense  and  a 
penalty,  and  it  is  therefore  assiuned  by  those  who  are  applying 
the  penal  treatment  that  there  is  a  necessary  connection  between 
the  two,  and  that  this  penalty  must  be  imposed  upon  this  offense. 

Poetic  penalties  are  also  based  upon  the  romantic  notion 
that  poetic  justice,  so  called,  is  accomplished  by  them.  The 
ancient  law  of  retaliation  {lex  ialionis)  was  doubtless  based 
in  part  upon  this  notion,  so  that  an  eye  for  an  eye  and  a  tooth 
for  a  tooth  was  supposed  to  attain  poetic  justice. 

But  poetic  punishment  doubtless  has  frequently  been  based 
in  part  upon  the  idea  of  prevention.  For  example,  it  has  been 
recognized  that  emasculation  for  the  rapist  would  effectually 
prevent  him  from  committing  rape  again.  The  brank  or  metal 
gag,  frequently  called  the  scold's  or  gossip's  bridle,  would  effec- 
tually restrain   temporarily    the   tongue  of   the   troublesome 


THE   ORIGIN   AND   EVOLUTION   OF   PUNISHMENT  365 

woman.     The  ducking  stool  was  supposed  to  cool  the  ardor  of 
the  temper  of  the  scold. 

The  romantic  purpose  of  attaining  poetic  justice  has  largely 
disappeared  from  penal  treatment  in  our  modem  realistic 
world.  The  idea  of  prevention  plays  an  ever  increasing  role  in 
punishment.  But  it  has  become  evident  that  poetic  penalties 
frequently  are  not  effective  preventives  in  the  long  run.  Emas- 
culation may  effectually  prevent  the  rapist  from  rape.  But  it 
will  not  necessarily  reform  him  from  being  as  dangerous  a  crimi- 
nal in  other  ways.  The  brank  may  effectually  gag  the  gossip 
temporarily.  But  it  may  only  serve  to  accentuate  the  malev- 
olence of  her  malicious  tongue  after  it  has  been  removed.  The 
ducking  stool  may  cool  the  body  of  the  scold,  but  may  only  serve 
to  enhance  the  inward  heat  of  her  temper.  It  is  probably  true 
that  poetic  penalties  with  the  object  of  prevention  are  most 
effective  upon  youthful  criminals. 

•    The  Scope  of  Punishment 

It  must  now  be  remembered  that  the  penalties  which  have 
been  briefly  described  have  been  imposed  not  only  upon  those 
who  are  ordinarily  regarded  as  criminals  today,  but  also  upon 
many  other  persons  who  are  not  now  usually  regarded  as  crimi- 
nals. Imprisonment  for  purposes  of  detention  has  been  and 
still  is  imposed  upon  those  accused  of  crime  and  upon  witnesses. 
Torture  has  frequently  been  inflicted  in  the  past  upon  the  ac- 
cused in  order  to  extort  confessions,  and  upon  witnesses  in  order 
to  secure  desired  evidence.  The  ordeals  imposed  upon  accused 
persons  in  order  to  ascertain  their  guilt  or  innocence  constitu- 
ted in  practise  a  form  of  torture. 

Among  primitive  peoples  and  also  sometimes  among  bar- 
barous peoples  the  relatives  of  criminals  were  punished.  This 
was  due  to  the  principle  of  collective  responsibility  for  crime 
according  to  which  the  family  of  the  offender,  and  sometimes 
an  even  larger  group  to  which  he  belonged,  was  held  responsible 
for  his  offense. 

Magicians,  sorcerers,  and  witches  have  frequently  been  pun- 
ished. This  was  usually  due  to  the  fact  that  they  were  supposed 
to  be  practising  black  magic  which  was  harmful  to  the  commim- 
ity.     So  that  the  practitioner  in  black  magic  was  regarded  in 


366  CRIMINOLOGY 

effect  as  a  criminal.  In  later  days  it  became  customary  to  pe- 
nalize the  practise  of  any  kind  of  magic.  This  was  probably  due 
in  large  part  to  the  fact  that  religion  had  by  this  time  acquired 
an  ascendency  over  magic,  and  therefore  jealously  restrained 
its  ancient  rival  with  the  aid  of  the  law  by  penalizing  it. 

Lunatics  have  frequently  been  subjected  to  penal  treatment. 
In  many  cases  this  has  been  due  to  the  fact  that  they  have  been 
regarded  as  magicians,  or  as  inhabited  by  evil  spirits.  It  must 
be  remembered,  on  the  other  hand,  that  lunatics  have  also  been 
regarded  as  geniuses  almost  superhuman  in  character,  or  as 
semi-divine  persons. 

Prisoners  of  war  were  frequently  punished  in  the  past  like 
common  criminals.  In  modern  times  a  sharp  distinction  has 
been  drawn  between  prisoners  of  war  and  common  criminals, 
but  there  is  a  wide  range  of  punishments  for  violations  of  military 
law,  some  of  which  are  even  more  drastic  than  the  penalties 
accorded  to  common  criminals. 

Heretics  have  frequently  been  punished  in  the  past.  Various 
motives  have  prompted  this  punishment.  Frequently  the  heretic 
has  been  regarded  as  dangerous  to  the  community,  because  the 
deity  might  wreak  vengeance  upon  the  whole  community  for 
his  heresies.  The  heretic  would  then  fall  into  almost  the  same 
category  as  the  common  criminal.  In  other  cases  the  sole  motive 
or  the  principal  motive  may  have  been  to  punish  the  heretic  for 
his  sinfulness  towards  the  deity.  In  these  cases  the  ecclesiastical 
inquisitors  and  executioners  were  taking  it  upon  themselves 
to  assist  the  deity  in  punishing  violations  of  the  divine  law. 

Debtors  have  frequently  been  imprisoned  in  the  past,  either 
temporarily  until  they  paid  their  debts,  or  as  a  punishment  for 
their  delinquency  in  meeting  their  financial  obligations.  Im- 
prisonment for  debt  is  still  inflicted  in  some  places.  It  occupies 
the  twilight  zone  between  the  criminal  and  the  civil  law.  It  is 
used  mainly  as  a  means  to  enforce  judgments  under  the  civil 
law,  but  it  still  retains  something  of  its  exemplary  character. 

The  Severity  of  Punishment 

The  preceding  survey  of  penalties  indicates  that  there  has 
been  a  good  deal  of  variation  in  the  severity  of  punishment. 
Generally  speaking,  punishment  has  decreased  in  severity  down 
to  the  present  time.    The  broadest  and  most  inclusive  explana- 


THE    ORIGIN   AND   EVOLUTION   OF   PUNISHMENT  367 

tion  for  this  phenomenon  doubtless  is  the  gradual  amelioration 
of  the  bitterness  of  the  struggle  for  existence.  As  the  conditions 
of  life  have  become  easier  and  safer,  there  has  been  less  occasion 
for  a  harsh  and  violent  reaction  against  those  who  commit 
anti-social  acts.  But  this  decrease  in  the  severity  of  punish- 
ment has  not  been  uniform,  and  there  has  been  more  or  less 
fluctuation  back  and  forth  in  its  severity.  The  principal  factors 
for  increasing  the  severity  of  punishment  probably  have  been 
the  centralization  of  power,  war,  magic  and  religion  and  the 
ignorance  they  connote. 

It  must  be  remembered  that  in  the  past  the  world  has  been 
much  more  sparsely  populated  than  at  the  present  time.  Fur- 
thermore, efficient  police  protection  is  a  comparatively  recent 
development.  Consequently,  it  is  not  surprizing  that  the  treat- 
ment of  the  criminal  was  rigorous  and  summary  in  its  nature. 
Death,  maiming,  and  similar  forms  of  punishment  were  quick 
and  effective  methods  of  incapacitating  the  criminal  from  com- 
mitting further  offenses.  Under  the  more  unstable  conditions 
of  the  past  it  would  have  been  difficult  to  carry  out  long  con- 
tinued forms  of  punishment  such  as  imprisonment. 

Among  primitive  peoples  the  principal  penalties  probably 
have  been  death  and  banishment.  These  were  drastic  and  sum- 
mary forms  of  punishment.  But  the  number  of  offenses  to  which 
they  were  applied  was  usually  not  large  in  the  earUest  com- 
munities. In  these  simple  and  democratic  communities  com- 
paratively few  forms  of  conduct  seriously  menaced  the  interests 
of  the  community  from  within.  But  as  magical  ideas  and  reli- 
gious beliefs  evolved,  and  as  power  came  to  be  centralized,  the 
number  of  offenses  rapidly  increased. 

Power  centralized  under  the  chieftains  of  tribes,  the  patriarchs 
of  family  groups  and  village  communities,  priests,  kings,  and 
ruling  classes.  This  power  was  used  to  a  considerable  extent  for 
the  exploitation  of  the  remainder  of  the  community.  The  penal 
function  furnished  a  useful  instrument  for  this  exploitation,  and, 
consequently,  its  application  was  greatly  extended  for  this  pur- 
pose. Magical  ideas  and  religious  beliefs  have  also  been  ex- 
tensively used  by  priestly  and  royal  exploiters  to  aid  them  in 
their  predatory  activities.^ 

'  Compare  the  following  passage  from  Westermarck : 

"The  chief  explanation  of  the  great  severity  of  certain  criminal  codes  lies 


368  CRIMINOLOGY 

War  also  has  doubtless  tended  to  accentuate  the  harshness  of 
punishment.  This  has  been  due  in  part  to  the  extreme  severity 
with  which  enemies  are  treated  in  war  time.  This  severity  was 
bound  to  react  upon  penal  treatment  so  as  to  increase  its  rigor- 
ousness.  But  it  has  also  been  due  to  the  fact  that  war  aggravates 
the  bitterness  of  the  struggle  for  existence,  and  thus  enhances  the 
intensity  of  the  selective  process.  Consequently,  it  becomes 
necessary  for  a  community  or  a  nation  to  extirpate  with  greater 
ruthlessness  the  internal  as  well  as  the  external  foe. 

Magical  ideas  have  led  to  a  good  deal  of  penal  treatment. 
Those  who  have  been  suspected  of  practising  black  magic  which 
is  harmful  to  the  community  have  almost  invariably  been 
treated  with  the  utmost  rigor.  Religion  has  led  to  even  more 
penal  repression.  A  vast  amount  of  punishment  has  been 
meted  out  in  the  past  for  alleged  violations  of  divine  law,  and 
more  or  less  of  penal  treatment  today  is  for  this  purpose. 

Furthermore,  there  has  been  a  vast  amount  of  persecution  for 
religious  unbelief,  and  heretics  have  frequently  been  treated  as 
the  most  heinous  of  criminals.  This  has  been  due  partly  to  the 
fact  that  heretics  are  presumably  violating  divine  law  in  re- 
fusing to  believe.     But  it  has  also  been  due  to  the  fact  that 

in  their  connection  with  despotism  or  religion  or  both.  An  act  which  is 
prohibited  by  law  may  be  punished,  not  only  on  account  of  its  intrinsic 
character,  but  for  the  very  reason  that  it  is  illegal.  When  the  law  is,  from 
the  outset,  an  expression  of  popular  feelings,  the  severity  of  the  penalty 
with  which  it  threatens  the  transgressor  depends,  in  the  first  place,  on  the 
public  indignation  evoked  by  the  act  itself,  independently  of  the  legal  pro- 
hibition of  it.  But  the  case  is  different  with  laws  established  by  despotic 
rulers  or  ascribed  to  divine  lawgivers.  Such  laws  have  a  tendency  to  treat 
criminals  not  only  as  offenders  against  the  individuals  whom  they  injure  or 
against  society  at  large,  but  as  rebels  against  their  sovereign  or  their  god. 
Their  disobedience  to  the  will  of  the  mighty  legislator  incurs,  or  is  supposed 
to  incur,  his  anger,  and  is,  in  consequence,  severely  resented."  (E.  Wester- 
marck,  op.  cit.,  Vol.  I,  pp.  193-194.) 

See,  also,  E.  Durkheim,  Deux  lots  de  revolution  pSnale,  in  L'ann6e  so- 
ciologique,  Vol.  IV  (1899-1900),  Paris,  1901,  pp.  65-95. 

Durkheim's  two  laws  are  the  following:  — 

"L'intensitfi  de  la  peine  est  d'autant  plus  grande  que  les  societ6s  appar- 
tiennent  i.  un  type  moins  61eve  —  et  que  le  pouvoir  central  a  un  caractfire 
plus  absolu."  (P.  65.) 

"Les  peines  privatives  de  la  libert6  et  de  la  liberty  seule,  pour  des  p6riodes 
de  temps  variables  selon  la  gravite  des  crimes,  tendent  de  plus  en  plus  4 
devenir  le  type  normal  de  la  repression."   (P.  78.) 


THE  ORIGIN  AND  EVOLUTION  OF  PUNISHMENT  369 

heresies  are  feared  on  the  ground  that  divine  retribution  for 
disbeUef  will  be  wreaked  upon  the  community  as  a  whole.  In 
the  third  place,  persecution  has  always  been  seized  upon  by 
priestly  exploiters  as  a  means  to  further  their  own  ends.  When- 
ever religion  has  been  institutionalized,  this  has  almost  in- 
variably happened.  The  most  notable  example  of  religious 
persecution  for  purposes  of  priestly  exploitation  was  the  Inquisi- 
tion organized  by  the  Christian  Church  early  in  Medieval  times, 
and  which'  lasted  through  the  Middle  Ages  and  in  Spain  per- 
sisted until  after  the  commencement  of  the  nineteenth  century 
(1834). 

The  Inquisition 

The  Holy  Inquisition  during  the  six  centuries  of  its  existence 
caused  untold  suffering  to  its  victims  and  their  families  and 
friends.  It  furnished  a  powerful  weapon  to  the  Church  and  the 
Papistry  to  aid  them  in  maintaining  and  extending  their  ill- 
gotten  authority.  It  was  one  of  the  principal  forces  which 
plunged  Europe  back  into  barbarism,  and  which  delayed  the 
advent  of  our  modern  Occidental  civilization.  It  was  inevitable 
that  it  should  have  a  brutalizing  effect  upon  all  phases  of  life 
during  the  Middle  Ages. 

But  the  above  picture,  repulsive  though  it  is,  does  not  tell  the 
whole  story  of  the  iniquities  wrought  by  the  Holy  Office.  In 
order  to  accomplish  more  effectively  their  evil  ends,  the  in- 
quisitors developed  one  of  the  most  barbarous  and  most  unjust 
methods  of  procedure  which  has  ever  been  devized.  Their 
proceedings  were  shrouded  under  profound  secrecy,  a  most 
efl&cient  cloak  for  injustice.  Little  opportunity  was  given  to  the 
accused  to  state  his  side  of  the  case.  Torture  was  freely  used  in 
questioning  the  witnesses  and  accused,  and  in  extorting  con- 
fessions. 

If  the  inquisitorial  procedure  had  been  restricted  to  the  eccle- 
siastical courts,  it  would  have  died  with  the  Inquisition.  But 
unfortunately  through  the  canonical  law  it  had  a  good  deal  of 
influence  upon  the  secular  law  as  well.  It  introduced  secret  in- 
quisitorial methods  and  the  use  of  torture  into  criminal  pro- 
cedure upon  the  Continent,  and  thus  had  a  most  baneful  effect 
upon  the  treatment  of  criminals  and  those  accused  of  crime. 


370  CRIMINOLOGY 

The  criminal  law  did  not  succeed  in  shaking  off  its  malignant 
influence  until  after  the  French  Revolution,  and  traces  of  its 
influence  still  remain  in  the  criminal  jurisprudence  of  several 
European  countries.^ 

The  Modern  Humanitarian  Movement 

During  the  past  century  or  two  has  come  the  modern  hu- 
manitarian movement.  This  movement  has,  among  other 
things,  ameliorated  greatly  the  treatment  of  the  criminal.  We 
can  readily  discern  its  causes  if  we  consider  the  salient  features  of 
modern  history.^ 

^  See  for  a  history  of  the  Inquisition  the  monumental  works  of  H.  C.  Lea, 
A  History  of  the  Inquisition  of  the  Middle  Ages,  Philadelphia,  1888,  3  vols.; 
A  History  0/  the  Inquisition  of  Spain,  New  York,  1906-1907,  4  vols. 

For  a  succinct  statement  of  the  causes  of  the  Inquisition  read  the  first 
volume  of  the  first  named  work,  especially  pages  233-242.  At  the  close  of 
the  third  volume  of  this  work  Lea  characterizes  the  Inquisition  in  the  fol- 
lowing words: 

"A  few  words  will  suffice  to  summarize  the  career  of  the  mediasval  In- 
quisition. It  introduced  a  system  of  jurisprudence  which  infected  the 
criminal  law  of  all  lands  subjected  to  its  influence,  and  rendered  the  ad- 
ministration of  penal  justice  a  cruel  mockery  for  centuries.  It  furnished 
the  Holy  See  with  a  powerful  weapon  in  aid  of  political  aggrandizement, 
it  tempted  secular  sovereigns  to  imitate  the  example,  and  it  prostituted  the 
name  of  religion  to  the  vilest  temporal  ends.  It  stimulated  the  morbid 
sensitiveness  to  doctrinal  aberrations  until  the  most  trifling  dissidence  was 
capable  of  arousing  insane  fury,  and  of  convulsing  Europe  from  end  to  end. 
On  the  other  hand,  when  atheism  became  fashionable  in  high  places,  its 
thunders  were  mute.  Energetic  only  in  evil,  when  its  powers  might  have 
been  used  on  the  side  of  virtue,  it  held  its  hand  and  gave  the  people  to  under- 
stand that  the  only  sins  dernanding  repression  were  doubt  as  to  the  ac- 
curacy of  the  Church's  knowledge  of  the  unknown,  and  attendance  on  the 
Sabbat.  In  its  long  career  of  blood  and  fire,  the  only  credit  which  it  can 
claim  is  the  suppression  of  the  pernicious  dogmas  of  the  Cathari,  and  in 
this  its  agency  was  superfluous,  for  those  dogmas  carried  in  themselves  the 
seeds  of  self-destruction,  and  might  more  wisely  have  been  left  to  self-ex- 
tinction. Thus  the  judgment  of  impartial  history  must  be  that  the  In- 
quisition was  the  monstrous  offspring  of  mistaken  zeal,  utilized  by  selfish 
greed  and  lust  of  power  to  smother  the  higher  aspirations  of  humanity  and 
stimulate  its  baser  appetites."  {A  History  of  the  Inquisition  of  the  Middle 
Ages,  Vol.  Ill,  p.  650.) 

*  I  have  analyzed  at  some  length  the  causes  of  the  modern  humanitarian 
movement  in  my  Poverty  and  Social  Progress,  New  York,  1916,  Chap.  XVII. 

See  also  my  article  entitled  The  Rise  of  Modern  Humanitarianism,  in  the 
Am.  Jour,  of  Sociology,  Vol.  XXI,  No.  3,  November,  1915,  pp.  345-359. 


THE   ORIGIN  AND   EVOLUTION   OF   PUNISHMENT  37 1 

The  modern  period  dates  from  the  Renaissance,  with  its 
revival  of  the  classic  culture  of  ancient  Greece  and  Rome  which 
had  long  been  suppressed  by  the  Christian  church  and  religion, 
and  its  renascence  of  art  and  learning.  This  renascence  of 
learning  marked  the  beginning  of  the  development  of  modem 
science,  which  made  possible  the  great  economic  changes  of 
modern  times.  At  the  same  time  extensive  explorations  to  all 
parts  of  the  world  were  taking  place,  which  resulted  in  the  dis- 
covery of  the  Western  Hemisphere  and  in  a  vast  expansion  of 
commercial  relations.  These  explorations  also  resulted  in  the 
colonizing  of  many  parts  of  the  world  by  Europeans. 

In  the  eighteenth  century  began  the  great  industrial  revolu- 
tion, which  substituted  machine  and  factory  methods  of  pro- 
duction on  a  large  scale  for  the  hand  and  domestic  methods  of 
production  on  a  small  scale  of  the  past.  This  great  change  in- 
volved a  vast  extension  of  the  principle  of  the  division  of  labor 
within  the  process  of  production.  Furthermore,  with  the  aid  of 
international  commerce  it  caused  a  worldwide  extension  of  the 
division  of  labor,  which  increased  greatly  the  interdependence  of 
all  parts  of  the  world. 

These  great  -  changes  increased  enormously  the  productive 
capacity  of  human  society.  As  a  consequence  the  population  of 
the  world  increased  greatly.  The  greater  density  of  population 
which  resulted  gave  rise,  among  other  things,  to  more  efficient 
government,  and  therefore  to  better  police  protection.  Con- 
sequently, living  conditions  became  safer,  and  it  was  no  longer 
necessary  to  treat  the  criminal  so  harshly. 

Along  with  the  expansion  of  the  division  of  labor  there  took 
place  a  great  increase  in  the  range,  facility,  and  rapidity  of  the 
means  of  communication  through  the  steamship,  railroad,  tele- 
graph, telephone,  post  office,  press,  etc.  By  these  means  the 
different  parts  of  the  world  have  been  put  in  touch  with  each 
other,  and  have  come  to  know  each  other  to  an  extent  which  was 
utterly  impossible  in  ancient  times. 

Last  but  not  least,  there  was  taking  place  at  the  same  time  the 
development  of  modern  science,  which  was  to  a  large  extent  the 
cause  of  the  above-mentioned  changes.  In  the  nineteenth  cen- 
tury came  the  theory  of  evolution,  which  showed  the  common 
origin  of  the  entire  organic  world  including  man.  When  this 
theory  was  applied  in  anthropology,  it  showed  that,  just  as  there 


372  CRIMINOLOGY 

is  no  absolute  distinction  between  man  and  other  animals,  so 
there  is  no  absolute  distinction  between  the  different  races  of 
men.  When  this  theory  was  applied  in  sociology,  it  showed  the 
fundamental  unity  in  the  culture  which  has  been  developing  in 
the  course  of  social  evolution. 

The  significance  of  these  great  changes  in  relation  to  hu- 
manitarianism  is  obvious.  The  increasing  interdependence  of 
the  different  parts  of  the  world  made  it  more  and  more  evident 
to  individuals  and  to  social  groups  that  it  was  to  their  interest  to 
concern  themselves  with  the  welfare  of  others.  Furthermore, 
the  knowledge  acquired  with  regard  to  other  individuals  and 
social  groups,  through  the  means  of  communication  described 
above  and  through  science,  has  shown  the  fundamental  sim- 
ilarity of  all  divisions  of  mankind,  and  has  stimulated  the  sym- 
pathetic imagination  to  a  high  degree.  These  ideas  and  this 
knowledge  have  naturally  tended  in  the  main  to  stimulate  the 
humane  feelings  and  impulses  in  the  relations  of  men  and  of 
social  groups,  and  to  inhibit  the  cruel  feelings  and  impulses. 
So  that  these  fundamental  human  traits,  which  have  been  in 
existence  a  long  time,  are  being  directed  by  the  intelligence, 
under  the  social  conditions  which  have  evolved  during  the  past 
few  centuries,  towards  humanitarianism. 

These  historical  facts  indicate  that  the  modern  humanitarian 
movement  has  arisen  out  of  certain  human  traits  influenced  and 
directed  by  the  conditions  and  ideas  which  have  become  prev- 
alent during  the  last  few  centuries.  Like  every  great  movement 
it  is  a  product  of  social  evolution  in  general,  and  can  be  under- 
stood only  in  the  light  of  an  analysis  of  social  evolution.  It  is 
one  phase  of  and  an  inevitable  result  from  the  universal  world 
culture  which  is  now  rapidly  coming  into  being.  It  has  alleviated 
the  treatment  of  the  criminal  just  as  it  has  ameliorated  the  con- 
dition of  the  poor,  the  sick,  the  insane,  prisoners  of  war,  and 
many  other  unfortunate  classes. 


CHAPTER  XXIII 
THE   MORAL   BASIS   OF   PENAL  RESPONSIBILITY 

The  sanctions  of  punishment  —  The  nature  of  moral  phenomena  —  Moral 
concepts  and  social  control  —  The  theory  of  penal  responsibility  — 
Free  will  and  determinism  —  The  psychological  basis  of  the  penal 
function:  anger;  vindictiveness;  fear  —  The  doctrine  of  partial  respon- 
sibility —  Penal  responsibility  and  the  individualization  of  punishment. 

I  have  already  stated  in  Chapter  III  that  in  every  social 
group  there  inevitably  evolves  a  certain  amount  of  control  by 
the  group.  As  man  developed  the  ability  to  think  conceptually, 
he  attempted  to  justify  this  social  control  by  explaining  it  and 
rationalizing  it,  and  thus  giving  it  a  philosophic  basis.  In  this 
fashion  he  arrived  at  various  ethical  ideas  as  to  the  responsibility 
of  the  individual  to  society  which  have  served  as  a  moral  basis 
and  sanction  for  punishment. 

The  Sanctions  for  Punishment 

One  of  the  earliest  forms  of  justification  for  social  control  was 
the  religious  form.  This  justification  was  to  the  effect  that  people 
must  be  punished  because  they  had  violated  the  divine  law. 
The  religious  sanction  for  penal  treatment  may  therefore  be 
called  purely  punitive  and  expiatory,  in  the  sense  that  it  is  en- 
tirely or  mainly  a  punishment  and  retribution  for  sin  without 
any  other  purpose.  This  sanction  for  punishment  still  persists 
to  a  certain  extent  in  the  social  consciousness  and  in  the  criminal 
law. 

In  course  of  time  man  conceived  the  idea  that  there  is  in  the 
universe  a  more  or  less  immutable  moral  law  which  is  binding 
upon  man.  Violation  of  this  law  would  then  demand  reparation 
of  some  sort.  The  moral  sanction  for  punishment  may  therefore 
be  called  reparatory  and  exemplary  in  the  sense  that  it  makes 
good  in  some  measure  the  breach  which  immoral  conduct  has 
opened  in  the  moral  law. 

In  recent  times  the  idea  has  appeared  and  has  acquired  more 


374  CRIMINOLOGY 

or  less  influence  that  the  sole  justification  for  rules  of  conduct  is 
the  interest  of  society  in  the  sense  that  society  is  to  be  protected 
against  conduct  which  is  injurious  to  it.  The  social  sanction  for 
punishment  may  therefore  be  called  deterrent  and  preventive  in 
the  sense  that  penal  treatment  is  for  the  purpose  of  benefiting 
society  in  the  future,  and  not  to  make  good  an  injury  which  has 
already  been  committed  and  which  therefore  cannot  be  obliter- 
ated. 

The  religious  and  the  moral  sanctions  for  social  control  and 
penal  treatment  have  been  set  forth  and  discussed  in  a  vast  mass 
of  theological  and  metaphysical  literature.  The  religious  sanc- 
tion is  based  upon  animistic  beliefs  in  the  existence  of  super- 
natural beings  and  of  a  divine  law.  These  beliefs  are  repudiated 
by  many  thinking  persons  today.  There  are  many  others  who, 
while  they  do  not  repudiate  these  beliefs,  do  not  regard  it  within 
the  province  of  man  to  enforce  the  divine  law.  The  moral 
sanction  is  based  upon  ideological  speculation  which  has  no 
inductive  basis,  and  which  cannot  therefore  be  regarded  as 
having  any  scientific  validity.^ 

As  a  matter  of  fact,  back  of  all  of  these  ethical  theories  are  the 
instincts  and  emotions  which  influence  social  relations,  the  habits 
which  arise  on  the  basis  of  these  instincts  and  emotions,  and 
the  customs  and  public  opinion  which  develop  in  every  human 
group.  An  adequate  analysis  of  moral  phenomena  consists 
largely  in  an  intensive  study  of  the  above-mentioned  mental  and 
social  phenomena.  Such  an  analysis  is  now  becoming  possible 
through  the  development  of  the  modern  sciences  of  psychology, 
anthropology,  and  sociology.  I  shall,  therefore,  not  traverse 
the  arid  wastes  of  theological  and  metaphysical  speculation,  but 
will  make  a  brief  analysis  of  moral  phenomena  with  the  aid  of 
these  sciences. 

The  Nature  of  Moral  Phenomena 

Moral  phenomena  arise  primarily  out  of  certain  instincts  and 
emotions  which  lead  human  beings  to  act  and  react  upon  each 
other  either  favorably  or  unfavorably.  On  the  one  hand  are  the 
emotion  of  anger  and  the  combative  instincts  which  it  accom- 

1  Brief  descriptions  of  these  theological  and  metaphysical  ethical  theories 
are  to  be  found  in  the  writings  of  Lecky,  Wake,  Westermarck,  Hobhouse, 
etc. 


THE   MORAL   BASIS   OF   PENAL   RESPONSIBILITY  375 

panics,  the  emotion  of  fear  and  the  instincts  which  lead  to  efforts 
to  destroy  or  remove  the  object  which  is  feared  or  to  flee  from 
it.  These  traits  lead  to  conduct  which  is  hostile  and  injurious  to 
others.  On  the  other  hand  are  the  emotions  and  instincts  con- 
nected with  gregariousness,  parenthood,  and  sex.  These  traits 
give  rise  to  sympathetic  feelings,  and  prepare  the  way  for  a 
sympathetic  understanding  of  each  other  on  the  part  of  human 
beings.  They  lead  to  altruistic  acts  in  behalf  of  others,  and 
prepare  the  way  for  a  humanitarian  point  of  view.  The  con- 
duct determined  and  controlled  by  these  congenital  instinctive 
and  emotional  traits  has  a  moral  significance  because  it  affects 
for  good  or  for  ill  the  welfare  of  other  members  of  the  group. ^ 

The  outstanding  congenital  traits  having  moral  significance, 
therefore,  are  anger  and  fear  with  the  instincts  which  they 
accompany,  which  lead  to  dislike,  disapproval,  resentment, 
hatred,  revenge,  punishment,  etc.;  and  the  tender  emotions  and 

^  Westermarck  asserts  that  "the  moral  concepts  are  based  on  emotions," 
and  defines  the  "moral  emotions"  as  follows: 

"These  emotions  are  of  two  kinds:  disapproval,  or  indignation,  and  ap- 
proval. They  have  in  common  characteristics  which  make  them  moral 
emotions,  in  distinction  from  others  of  a  non-moral  character,  but  at  the 
same  time  both  of  them  belong  to  a  wider  class  of  emotions,  which  I  call 
retributive  emotions.  Again,  they  differ  from  each  other  in  points  which 
make  each  of  them  allied  to  certain  non-moral  retributive  emotions,  disap- 
proval to  anger  and  revenge,  and  approval  to  that  kind  of  retributive 
kindly  emotion  which  in  its  most  developed  form  is  gratitude.  They  may 
thus,  on  the  one  hand,  be  regarded  as  two  distinct  divisions  of  the  moral 
emotions,  whilst,  on  the  other  hand,  disapproval,  like  anger  and  revenge, 
forms  a  sub-species  of  retributive  kindly  emotion."  (E.  Westermarck,  The 
Origin  and  Developmeni  of  the  Moral  Ideas,  London,  1906,  Vol.  I,  p.  21.) 

While  Westermarck  is  justified  in  pointing  out  the  moral  significance  of 
these  so-called  emotions,  he  has  failed  to  include  the  instincts  which  have 
the  same  significance.  It  should  also  be  noted  that  his  "moral  emotions" 
are  sentiments  rather  than  emotions,  since  they  are  too  complex  to  be  re- 
garded as  distinct  emotions. 

Sutherland  enumerates  various  sympathetic  emotions  which,  he  asserts, 
constitute  what  he  erroneously  calls  the  "moral  instinct":  — 

"The  moral  instinct,  therefore,  is,  in  social  animals,  the  result  of  that 
selective  process  among  the  emotions  which  tends  to  encourage  those  that 
are  mutually  helpful,  and  to  weaken  those  that  are  mutually  harmful." 
(A.  Sutherland,  TJte  Origin  and  Growth  of  the  Moral  Instimt,  London,  1898, 
Vol.  II,  p.  304.) 

It  is  evident  that  Sutherland  ignores  the  moral  significance  of  the  con- 
genital traits  that  lead  to  conduct  which  is  unfavorable  to  others. 


376  CRIMINOLOGY 

social  impulses,  which  lead  to  liking,  approval,  gratitude,  love, 
altruistic  and  humanitarian  acts,  etc.  These  congenital  traits 
are  shared  in  a  measure  by  the  other  higher  animal  species. 
However,  it  can  scarcely  be  said  that  any  of  these  animals  have 
reached  the  moral  plane,  for  it  is  doubtful  if  any  animal  other 
than  man  has  ever  made  a  moral  judgment,  that  is  to  say,  has 
ever  consciously  characterized  an  act  as  right  or  wrong.  It  was 
the  superior  excellence  of  the  hiunan  intellect  which  enabled 
man  to  rationalize  the  conduct  which  arose  from  these  congen- 
ital traits.^ 

As  man  developed  language  which  enabled  him  to  commu- 
nicate with  his  fellows,  he  was  forced  to  characterize  and  to  try 
to  account  for  his  acts.  So  that  there  evolved  slowly  in  his  mind 
and  consciousness  the  concepts  of  right  and  of  wrong,  of  justice 
and  of  injustice,  of  rights  and  of  duties.  These  concepts  are  now 
shared  in  some  measure  by  all  human  beings,  and  constitute 
moral  standards  and  codes,  which  influence  human  conduct 
materially.  Consequently,  we  may  define  conduct  having  a 
moral  significance  as  human  behavior  which  has  been  subjected  to 
moral  judgments. 

It  goes  without  saying  that  these  moral  judgments  have  fre- 
quently been  mistaken,  in  the  sense  that  they  have  not  been 
based  upon  an  accurate  knowledge  of  the  facts  of  nature.  Con- 
sequently, they  have  frequently  done  harm  to  mankind.  But 
a  selective  process  has  constantly  been  at  work  in  the  course  of 
which  the  false  and  harmful  judgments  have  gradually  been 
eliminated,  and  the  desirable  ones  have  been  retained.  This 
selective  process  has  been  due  largely  to  the  struggle  for  existence 
between  individuals  and  between  social  groups.    The  conditions 

^  Cf.  C.  Darwin,  The  Descent  of  Man  and  Selection  in  Relation  to  Sex, 
London,  1871,  Vol.  I,  pp.  71-73. 

"The  following  proposition  seems  to  me  in  a  high  degree  probable  — 
namely,  that  any  animal  whatever,  endowed  with  well-marked  social  in- 
stincts, would  inevitably  acquire  a  moral  sense  or  conscience,  as  soon  as  its 
intellectual  powers  had  become  as  well  developed,  or  nearly  as  well  de- 
veloped, as  in  man.  ...  It  may  be  well  first  to  premise  that  I  do  not  wish 
to  maintain  that  any  strictly  social  animal,  if  its  intellectual  faculties  were 
to  become  as  active  and  as  highly  developed  as  in  man,  would  acquire  ex- 
actly the  same  moral  sense  as  ours.  In  the  same  manner  as  various  animals 
have  some  sense  of  beauty,  though  they  admire  widely  different  objects,  so 
they  might  have  a  sense  of  right  and  wrong,  though  led  by  it  to  follow 
widely  different  lines  of  conduct." 


THE   MORAL   BASIS   OF   PENAL   RESPONSIBILITY  377 

of  this  struggle  have  been  determined  by  the  environment  and 
the  stage  in  social  evolution  attained  by  the  groups  involved. 
In  the  long  run,  therefore,  moral  standards  and  codes  are  certain 
to  be  utilitarian  and  hedonistic.^ 

Moral  Concepts  and  Social  Control 

Moral  concepts  have  always  been  enforced  in  a  measure  in 
each  social  group  by  some  means  of  social  control.  Gradually 
has  evolved  in  greater  richness  and  detail  the  concept  of  justice 
as  including,  on  the  one  hand,  the  recognition  and  safeguarding 
of  rights,  and,  on  the  other  hand,  the  enforcement  of  duties. 
The  penal  function  has  evolved  for  the  purpose  of  guaranteeing 
justice  and  suppressing  injustice.  With  the  organization  of  the 
political  state  came  into  being  law,  in  the  technical  sense  of  that 
word.  Since  that  time  moral  ideas  have  been  recognized  and 
embodied  to  a  certain  extent  in  the  law.  The  penal  division  of 
the  law  has  been  the  most  drastic  means  of  enforcing  these  moral 
ideas,  and  has,  therefore,  taken  its  place  as  the  principal  form 
of  social  control. 

It  is  obvious  that  organized  society  is  impossible  without  social 
control.  But  it  is  also  true  that  an  excessive  amount  of  social 
control  will  do  harm  as  well  as  the  lack  of  it,  There  is  always 
present  the  danger  of  coming  to  regard  social  control  as  an  end 
instead  of  a  means  to  an  end.  When  this  happens,  such  control 
is  almost  certain  to  become  excessive.  An  excess  of  social  con- 
trol results  in  interfering  unduly  with  the  spontaneous  expres- 
sion of  human  nature  which  should  be  the  object  of  civilization. 
Another  almost  inevitable  result  from  excessive  social  control  is 
that  those  who  administer  the  means  of  control  forget  human 
beings  as  individuals  in  favor  of  an  abstract  mankind,  which  is 
meaningless.  So  that  it  is  essential  in  studying  social  control 
to  bear  in  mind  not  only  the  necessity  for  a  certain  amount  of 
it,  but  also  the  danger  of  having  too  much  of  it. 

Hence  it  is  that  in  discussing  the  treatment  of  crime  we  should 

^  The  following  attempts  to  emancipate  ethics  from  theological  and  meta- 
physical speculation,  and  to  place  it  upon  a  scientific  basis  may  be  men- 
tioned:— 'J.  M.  Guyau,  A  Sketch  of  Morality  Independent  of  Obligation  or 
Sanction,  London,  1898;  G.  L.  Duprat,  Morals:  A  Treatise  on  the  Psycho- 
Sociological  Bases  of  Ethics,  London,  1903.  See  also,  in  this  connection, 
J.  L.  de  Lanessan,  La  morale  des  religions,  Paris,  1905. 


378  CRIMINOLOGY 

consider  not  only  the  need  for  repressive  measures,  but  also  the 
importance  of  conserving  the  freedom  of  the  individual  as  far 
as  is  compatible  with  the  welfare  of  society.  I  have  already 
shown  how  autocratic  and  oligarchic  government  and  religion 
have  frequently  overstepped  the  bounds  of  justifiable  social 
restraint  upon  the  individual,  usually  in  the  interest  of  a  small 
group,  such  as  a  royal  family,  a  priestly  class,  a  hereditary 
nobility,  etc.  But  the  same  thing  happens  even  in  communities 
which  are  supposed  to  be  democracies,  either  because  a  small 
group  has  usurped  an  undue  amount  of  authority  which  it  is 
using  for  its  own  benefit,  or  because  the  unthinking  majority  of 
the  population  of  the  democracy,  swayed  by  the  passions  and 
prejudices  characteristic  of  the  mob  spirit,  is  imposing  unjust 
restrictions  upon  the  minority. 

The  Theory  of  Penal  Responsibility 

In  view  of  these  facts  it  is  obvious  that  the  theory  of  the  penal 
responsibility  of  the  individual  is  of  fundamental  importance 
in  the  treatment  of  the  criminal.  In  many  savage  and  barbarous 
communities  the  responsibility  for  acts  regarded  by  the  com- 
munity as  anti-social  has  rested  upon  the  group  to  which  the 
guilty  individual  belonged,  as,  for  example,  his  family  or  his 
clan.  This  was  due  to  ideas  with  regard  to  blood  kinship,  etc., 
which  there  is  not  the  space  to  discuss  here.  But  in  all  probabil- 
ity even  in  these  communities  the  individual  was  held  respon- 
sible for  his  own  acts  within  his  own  group.  With  the  advent 
of  civilization  the  individual  came  to  be  recognized  more  clearly 
as  a  distinct  unit,  and  social  responsibility  for  crime  very  largely 
disappeared  to  be  replaced  by  individual  responsibility. 

Individual  penal  responsibility  has  been  placed  upon  diflferent 
bases.  In  accordance  with  the  religious  sanction  for  punish- 
ment the  individual  is  held  responsible  for  having  violated  the 
divine  law,  and  thereby  committing  an  offense  against  the  deity 
who  is  usually  regarded  as  his  creator.  In  accordance  with  the 
moral  sanction  for  punishment  the  individual  is  held  responsible 
for  having  violated  the  absolute  moral  law  which  he  is  in  duty 
bound  to  obey  for  a  metaphysical  reason  which  is  too  tenuous 
for  the  non-metaphysical  mind  to  comprehend!  In  both  of  these 
cases  there  has  usually  been  assumed  a  free  will  which  gives 


THE   MORAL   BASIS   OF   PENAL  RESPONSIBILITY  379 

the  individual  freedom  of  choice  to  heed  the  divine  or  moral 
law  or  not  as  he  chooses.  If  therefore  he  is  guilty  of  the  turpi- 
tude of  choosing  to  violate  the  absolute  law,  there  is  every  reason 
why  he  should  be  held  responsible  for  the  dire  consequences  of 
his  acts. 

In  accordance  with  the  social  sanction  for  punishment  the 
individual  is  held  responsible  for  having  injured  society.  In 
this  case  also  a  free  will  has  frequently  been  assumed.  Inas- 
much as  according  to  this  assumption  the  individual  is  free  to 
refrain  from  injuring  society,  he  should  be  held  responsible  for 
doing  injury  to  society.  When  he  commits  anti-social  acts  the 
individual  has,  so  to  speak,  opened  war  upon  society,  which  must 
defend  itself  against  him.  He  must,  therefore,  take  the  conse- 
quences of  his  acts. 

Free  Will  and  Determinism 

But  the  progress  of  science  has  destroyed  for  all  practical 
purposes  the  theological  and  metaphysical  doctrine  of  a  free 
will.  Scientific  research  has  extended  the  concept  of  natural 
causation  to  all  observed  phenomena.  Physiology,  psychology, 
and  the  social  sciences  have  extended  it  to  human  behavior.^ 
So  far  as  we  can  see,  every  human  act  like  the  acts  of  every 
living  being  is  determined  by  natural  causes.  For  example,  an 
injury  to  the  nervous  system  may  have  a  marked  effect  upon  the 
behavior  which  in  many  cases  can  be  predicted.  Disturbances 
of  the  physiological  processes  may  have  equally  great  effects.  _ 
The  mental  processes  are  constantly  being  influenced  by  stimuli 
which  are  being  received  from  the  environment  through  the 
nervous  system.  The  effects  of  different  kinds  of  food,  of  poisons 
like  alcohol  and  the  narcotic  and  hypnotic  drugs,  of  climatic 
and  weather  conditions,  etc.,  can  more  or  less  readily  be  traced. 

In  fact,  the  behavior  of  any  individual  is  the  resultant  of  a 
complex  of  many  factors  which  are  comprized  in  the  inherited 
structure,  the  traits  which  have  been  acquired  as  a  consequence 
of  past  environment,  and  the  immediate  environment.  So  that 
we  can  trace  in  a  measure  how  the  congenital  instincts  and  emo- 
tions are  modified  under  the  influence  of  the  given  environ- 

'  Ample  evidence  of  the  natural  determination  of  human  behavior  is  fur- 
nished in  my  Science  of  Human  Behavior,  New  York,  1913. 


380  CRIMINOLOGY 

ment,  and  how  the  intellect  is  developed  and  directed  in  the 
course  of  the  life  experience  of  the  individual. 

In  view  of  these  ineluctable  facts  with  regard  to  the  natural 
determination  of  human  behavior  the  theological  and  meta- 
physical freedom  of  the  will  fades  away  into  nothingness.^  The 
question  may  then  be  raised  as  to  whether  there  can  be  such  a 
thing  as  individual  responsibility  for  conduct,  or  indeed  hmnan 
responsibility  of  any  sort.  Certainly  not  in  the  theological  and 
metaphysical  sense,  but  it  can  exist  in  the  positive,  scientific 
sense. 

While  it  is  true  that  the  human  organism  and  human  nature 
have  been  determined  by  all  the  forces  which  have  acted  upon 
them,  it  is  also  true  that  this  organism  is  a  complex  mechanism 
and  center  of  energy  from  which  radiate  stimulations  and  im- 
pulsions which  may  have  far-reaching  consequences.  Further- 
more, as  an  organism  it  is  highly  self-directing,  more  so,  indeed, 
than  any  other  organism.  Consequently,  we  have  every  reason 
to  regard  the  human  organism  as  an  efficient  cause  of  the  deeds 
which  emanate  from  it,  and  the  consequences  of  those  deeds. 
In  this  positive  and  scientific  sense,  then,  we  may  regard  the 
individual  as  reponsible  for  his  conduct. 

But  the  above-mentioned  responsibility  is  much  broader  than 
moral  responsibility,  while  penal  responsibility  is  ordinarily 
even  more  limited  than  moral  responsibility.  In  every  punitive 
system  the  extent  and  nature  of  penal  responsibility  has  de- 
pended not  only  upon  the  prevailing  conception  of  the  human 
will,  but  also  upon  the  recognized  objects  and  purposes  of  penal 
treatment.  Furthermore,  in  the  theological  and  metaphysical 
systems  exceptions  had  to  be  made  on  account  of  certain  ob- 
vious features  of  human  nature,  however  inconsistent  these 
exceptions  may  have  been  with  the  theological  and  metaphysi- 
cal theories. 

I  have  already  stated  that  according  to  the  religious  sanc- 
tion for  penal  treatment  the  object  of  punishment  is  punitive 
and  expiatory,  according  to  the  moral  sanction  it  is  reparatory 
and  exemplary,  and  according  to  the  social  sanction  it  is  pre- 
ventive and  deterrent.    But  in  practise  these  objects  have  been 

^  See,  for  a  detailed  criticism  of  the  doctrine  of  free  will  and  an  exposition 
of  the  theory  of  determinism  as  applied  to  penal  responsibility,  R.  M.  Mc- 
Connell,  Criminal  Responsibility  and  Social  Constraint,  New  York,  1912. 


THE  MORAL  BASIS   OF  PENAL  RESPONSIBILITY  38 1 

more  or  less  mingled,  whatever  the  alleged  sanction  might  be. 
Punishment  with  a  rehgious  or  moral  sanction  has  frequently 
been  regarded  by  those  administering  it  as  being  deterrent  and 
preventive  as  well.  Punishment  with  a  social  sanction  has 
sometimes  been  regarded  as  punitive  and  exemplary  as  well. 

The  Psychological  Basis  of  the  Penal  Function 

The  reason  for  this  mingling  of  the  objects  of  punishment 
is  that  back  of  all  of  these  sanctions  are  the  fundamental  human 
traits  which  give  rise  to  social  reaction  against  offenders.  They 
are  the  emotions  of  anger  and  fear  with  the  instincts  which  they 
accompany.  Anger  furnishes  a  basis  for  vindictiveness,  which 
leads  to  acts  of  vengeance.  This  constituent  element  in  punish- 
ment is  most  fully  exemplified  in  the  religious  sanction.  While 
the  purpose  of  this  sanction  is  alleged  to  be  punishment  and  ex- 
piation for  violations  of  the  divine  law,  it  is  in  reality  a  more  or 
less  unconscious  expression  of  the  vengeful  spirit  in  man  which 
appears  here  in  a  theological  guise.  So  that  while  man  has  been 
punishing  in  the  name  of  a  deity,  he  has  been  giving  vent  to  his 
own  hateful  feelings.  Unfortunately  this  religious  sanction  for 
some  of  the  most  dangerous  and  unruly  traits  in  human  nature 
has  consecrated  and  reenforced  them  in  such  a  fashion  as  to 
increase  greatly  the  amount  of  sternness  and  cruelty  in  human 
relations.  This  influence  of  religion  has  manifested  itself  in 
brutal  treatment  of  criminals,  in  religious  persecution,  in 
inmunerable  wars,  in  slavery,  in  neglect  of  the  sufferings  of 
the  sick  and  the  poor,  etc. 

Fear  gives  rise  to  impulses  to  remove,  to  flee  from,  and  some- 
times to  destroy  the  feared  object.  This  constituent  element  in 
penal  treatment  is  most  fully  exemplified  in  the  social  sanction. 
It  is  fear  that  gives  the  initial  dynamic  impulse  to  the  desire  to 
remove  or  destroy  the  persons  who  commit  what  are  regarded  as 
harmful  deeds,  and  to  prevent  others  from  coramitting  similar 
deeds.  So  that  the  deterrent  and  preventive  motives  for  penal 
treatment  doubtless  arise  on  a  basis  of  fear. 

Now  anger  and  fear  are  closely  connected  in  the  mental 
makeup.  Fear  is  very  likely  to  lead  to  anger,  and  thus  to  add 
vengeance  to  the  deterrent  and  preventive  motives  for  punish- 
ment.   Fear  is  in  itself  an  unruly  trait  which  is  liable  to  assume 


382  CRIMINOLOGY 

an  exaggerated  form,  and  thus  to  stampede  its  subject  into 
hasty  and  foolish  acts.  It  is,  therefore,  doubly  unfortunate  that 
it  should  be  reenforced  by  anger.  The  consequence  frequently 
is  that  penal  treatment  is  carried  far  beyond  the  needs  of  social 
defense  against  anti-social  acts,  and  sometimes  does  more  harm 
than  good. 

It  is  evident,  therefore,  how  important  it  is  to  rationalize 
punishment,  and  to  put  these  unruly  emotions  as  much  as  possi- 
ble under  the  guidance  and  control  of  the  intellect.  But  it  can- 
not be  said  that  the  penal  sanctions  I  have  described  have  done 
so  successfully.  At  any  rate,  this  is  obviously  true  of  the  re- 
ligious sanction.  In  the  first  place,  there  is  grave  question  as  to 
the  existence  of  the  deity  and  the  divine  law  upon  which  this 
sanction  is  postulated.  In  the  second  place,  even  if  we  assume 
their  existence,  it  is  far  from  certain  that  man  is  sufficiently 
acquainted  with  the  divine  law  or  has  the  ability  to  enforce  it. 
Consequently,  the  religious  sanction  is  a  very  questionable  and 
imstable  basis  for  so  important  a  function  as  the  protection  of 
society  against  anti-social  acts. 

Much  the  same  can  be  said  of  the  moral  sanction  for  penal 
treatment  which  is  postulated  upon  the  existence  of  an  absolute 
moral  law.  After  all,  this  is  merely  a  somewhat  more  philosophic 
statement  of  the  theological  theory.  It  may  lend  itself  a  little 
more  readily  to  the  purpose  of  protecting  society  against  harm- 
ful conduct.  But  neither  the  theological  nor  the  metaphysical 
theory  is  adequate  or  suitable  for  an  effective  program  of  deter- 
rence and  prevention  against  crime. 

The  social  sanction  is  the  most  successful  in  rationalizing  the 
penal  fimction.  It  is  not  based  upon  any  uncertain  and  prob- 
ably mythical  divine  or  absolute  moral  laws.  It  contemplates 
no  indefinable  and  unknowable  transcendental  objects  to  be 
attained,  but  is  limited  to  purely  hmnan  and  social  interests. 
It  is  relative  and  inductive  in  its  methods,  and  therefore  lends 
itself  readily  to  pragmatic  and  hedonistic  ends. 

But  those  who  have  advocated  and  expounded  the  social 
sanction  for  punishment  up  to  the  present  time  have  not  under- 
stood clearly  the  mental  mechanism  which  is  back  of  the  penal 
fimction.  They  have  probably  not  realized  fully,  and  sometimes 
not  at  all,  the  extent  to  which  the  motives  of  deterrence  and 
prevention  arise  out  of  the  emotion  of  fear.    Consequently,  they 


THE  MORAL  BASIS  OF   PENAL  RESPONSIBILITY  383 

have  not  recognized  frequently  that  this  emotion  is  liable  to  run 
away,  so  to  speak,  with  the  penal  function,  and  to  lead  to  foolish 
and  excessive  uses  of  it.  Furthermore,  they  have  usually  not 
realized  at  all  that  anger  is  almost  inevitably  a  resultant  from, 
or,  to  say  the  least,  an  accompaniment  of  fear,  and  therefore 
must  always  be  borne  in  mind  and  reckoned  with  as  an 
element  in  punishment. 

The  exponents  of  the  social  sanction  for  penal  treatment  have 
been  inspired  by  the  legitimate  and  laudable  desire  to  adapt  and 
adjust  the  penal  function  as  directly  as  possible  to  useful  human 
and  social  ends.  They  have  recognized  that  such  emotions  as 
anger  and  fear  are  irrational  in  the  sense  that  they  are  not  in- 
tellectual phenomena,  and  their  tendency  has  been  to  ignore 
them.  They  have  failed  to  realize  that  however  unreasonable 
and  harmful  these  emotions  frequently  are,  they  are  inextri- 
cable traits  in  himian  nature  which  must  always  be  reckoned 
with. 

The  wise  policy  therefore  is  not  to  forget  these  emotions  but  to 
remember  them,  and  to  endeavor  to  direct  and  control  them  as 
best  we  may  by  means  of  the  intellect.  This  can  be  accomplished 
by  two  principal  means.  In  the  first  place,  a  social  organization 
should  be  developed  which  will  put  effective  checks  upon  the 
expression  of  these  emotions.  In  the  second  place,  there  should 
be  disseminated  by  educational  and  other  means  certain  ideas 
which  will  give  to  the  young  as  they  approach  maturity  an 
understanding  of  these  affective  traits,  and  will  aid  each  genera- 
tion to  direct  and  control  these  emotions  wisely. 

Let  us  now  apply  these  fundamental  principles  and  concepts 
to  the  idea  of  punishment  in  order  to  determine  its  nature  and 
limits,  and  also  in  order  to  ascertain  the  nature  and  extent  of 
the  penal  responsibility  of  the  individual.  It  is  obvious  that 
the  concepts  of  punishment  and  of  penal  responsibility  are  basic 
to  criminal  law  and  procedure  and  to  all  forms  of  penal  treat- 
ment, and  it  is  therefore  of  the  utmost  importance  to  define  these 
concepts  as  clearly  as  possible. 

In  the  first  place,  the  law  must  enumerate  the  acts  which  are 
to  be  stigmatized  as  criminal.  Some  of  these  acts  are  obvious, 
such  as  those  which  endanger  the  person  with  death  or  physical 
injury.  Other  acts  endanger  the  established  social  institutions, 
such  as  the  right  of  private  property,  marriage,  etc.    The  jus- 


384  CRIMINOLOGY 

tification  for  the  prohibitions  in  the  second  group  depends  upon 
the  value  of  these  institutions. 

But  there  is  reason  to  believe  that  many  prohibitions  are 
imposed  out  of  fear  of  what  is  new,  or,  at  any  rate,  what  is  new 
in  the  experience  of  the  individual.  It  is  diflGicult  for  the  human 
mind  to  adjust  itself  to  things  to  which  it  is  not  accustomed. 
Conservatism  and  social  conventions  are  due  to  this  mental 
trait.  Consequently,  sumptuary  legislation  and  other  laws 
repressing  unconventional  conduct  come  into  being. 

Fear  is,  therefore,  both  useful  and  harmful.  It  is  useful  in  so 
far  as  it  guards  against  forms  of  conduct  which  are  unques- 
tionably injurious  to  mankind.  Furthermore,  it  acts  as  a  check 
upon  changes  which  may  not  prove  to  be  desirable.  But,  on  the 
other  hand,  it  stands  in  the  way  of  many  changes  which  will 
prove  to  be  beneficial,  and  thus  impedes  social  progress.  Fur- 
thermore, it  prevents  the  highest  possible  degree  of  free  activity 
on  the  part  of  human  beings,  and  thus  hinders  the  spontaneous 
expression  of  human  nature  which  should  be  the  principal  object 
of  civilization  and  of  human  culture  in  general.^ 

When  we  turn  to  the  reaction  against  the  criminal  offender, 
we  find  the  situation  complicated  by  the  emotion  of  anger.  It  is 
probably  inevitable  that  feelings  of  resentment  if  not  of  hatred 
are  manifested  towards  the  person  guilty  of  conduct  which  is  re- 
garded as  harmful.  As  a  consequence  of  these  feelings  there  is 
sure  to  be  an  element  of  vengeance  in  punishment.  As  I  have 
stated  in  Chapter  II,  in  the  early  stages  of  culture  this  feeling 
displayed  kself  not  only  against  human  beings,  but  also  against 
animals  and  even  inanimate  things.  But  when  man  came  to 
understand  more  clearly  the  causation  of  events  in  the  world,  he 
realized  that  no  purposive  harm  could  be  done  to  him  by  in- 
animate things,  and  rarely  if  ever  by  animals. 

The  Doctrine  of  Partial  Responsibility 

Consequently  man  came  to  limit  the  concept  of  moral  and 
penal  responsibility  to  human  beings.  But  in  course  of  time 
he  recognized  that  this  responsibility  was  limited  even  with 

1 1  have  outlined  this  object  of  civilization  in  the  last  chapter  of  my 
Poverty  and  Social  Progress,  New  York,  1916,  entitled  "Social  Progress  and 
the  Coming  of  the  Normal  Life." 


THE  MORAL   BASIS   OF   PENAL  RESPONSIBILITY  385 

respect  to  certain  groups  of  human  beings.  This  recognition  was 
due  to  a  perception  of  the  obvious  fact  that  these  human  beings 
were  laboring  under  an  intellectual  disability  which  rendered 
them  incapable  of  comprehending  the  nature  of  their  acts,  and 
therefore  of  doing  harm  purposely.  In  this  fashion  arose  the 
theory  of  the  partial  or  complete  irresponsibility  of  the  young,  of 
imbeciles,  of  lunatics,  of  intoxicated  persons,  etc. 

This  theory  was,  of  course,  totally  inconsistent  with  the  belief 
in  a  free  will,  for  if  the  will  is  indeed  free  it  must  be  independent 
of  merely  material  conditions,  and  could  not  be  influenced  by 
such  inconsequential  matters  as  physical  and^ental  immaturity, 
an  undeveloped  or  deranged  nervous  system,  an  organism  poi- 
soned by  alcohol,  drugs,  etc.,  and  other  unimportant  physical 
conditions  over  which  the  spirit  should  ride  triumphant.  But  for 
once  common  sense  conquered  theological  dogmatism  and 
metaphysical  ideology,  and  now  theology  and  metaphysics  are 
trying  to  patch  things  up  by  means  of  an  absurd  doctrine  of  a 
limited  free  will,  whatever  that  contradiction  in  words  and  ideas 
may  be. 

The  appearance  of  the  doctrine  of  a  limited  moral  and  penal 
responsibility  for  some  human  beings  is  of  great  significance. 
It  indicates  that  the  spirit  of  vengeance  can  be  guided  and  con- 
trolled to  a  certain  extent  when  enlightened  by  the  intellect. 
It  furnishes  hope  that  this  intellectual  guidance  and  control  will 
become  much  greater  in  the  future.  It  would  become  most 
powerful  if  men  could  attain  a  clear  understanding- of  the  theory 
of  determinism,  and  would  apply  this  theory  consistently  in  the 
treatment  of  the  criminal.  Criminals  would  then  be  punished 
in  accordance  with  their  individual  traits  and  in  order  to  attain 
the  socially  useful  ends  of  punishment,  by  removing  the  offender 
from  society,  by  reforming  his  character,  or  in  some  other  way. 

But  it  will  probably  always  be  impossible  to  eliminate  ven- 
geance entirely  from  penal  treatment.  Indeed,  some  writers 
contend  that  this  spirit  of  vengeance  has  great  utility,  and 
therefore  should  not  be  eliminated.  Their  theory  is  that  the 
resentment  and  hatred  felt  towards  the  criminals  gives  rise  to  an 
emotional  reaction  which  stimulates  and  enhances  the  moral 
indignation  felt  towards  the  evil  acts  of  the  criminals.  Thus  the 
offenders  are  made  to  personify  in  a  measure  in  the  public  mind 
the  hatefulness  of  their  acts,  and  without  this  concrete  per- 


386  CRIMINOLOGY 

sonification  the  public  indignation  towards  evil  conduct  would 
not  be  as  great  as  it  should  be.  ^ 

There  is  doubtless  a  measure  of  truth  in  this  theory.  But 
it  is  highly  probable  that  the  spirit  of  vengeance  will  always  be 
strong  enough  to  perform  this  useful  function  without  any 
artificial  encouragement.  Indeed,  the  usual  if  not  the  constant 
danger  is  that  this  spirit  will  be  too  strong,  and  will  not  subject 
itself  sufficiently  to  the  guidance  of  the  intellect. 

We  can  now  see  both  the  utility  and  the  dangers  of  the  emo- 
tions of  fear  and  of  anger  for  the  penal  function.  These  emotions 
doubtless  evolved  Ijecause  of  their  great  value  for  the  preserva- 
tion of  the  individual  in  the  struggle  for  existence.  They  are 
now  furnishing  much  of  the  dynamic  impulse  for  the  measures 
being  used  for  the  protection  and  preservation  of  society.  But 
they  need  to  be  curbed  and  rationalized  by  the  intellect.  Other- 
wise there  is  always  the  danger  of  their  sinking  to  the  level  of 
lynch  law. 

If  the  degree  of  punishment  to  be  inflicted  was  to  be  deter- 
mined solely  by  the  feeling  of  vengeance  aroused  by  the  offense, 
the  amount  of  punishment  meted  out  would  be  measured  pre- 
sumably by  the  heinousness  of  the  act.  But  even  under  the 
religious  and  moral  sanctions  the  penal  responsibility  of  some 
individuals  has  been  regarded  as  limited,  and,  consequently, 
their  penalties  have  been  more  or  less  attenuated.  This  was 
doubtless  due  in  part  to  the  fact  that  kindly  feeUngs  in  behalf 

^  Among  the  writers  who  have  expounded  this  theory  are  A.  Shaftesbury, 
Characteristicks,  London,  1733,  Vol.  II;  J.  F.  Stephen,  A  History  of  tlie 
Criminal  Law  of  England,  London,  1883,  Vol.  II;  E.  Durkheim,  De  la 
division  du  travail  social,  2d  ed.,  Paris,  1902.  Westermarck  has  stated  the 
theory  recently  in  the  following  words:  — 

"Whether  its  voice  inspire  fear  or  not,  whether  it  wake  up  a  sleeping 
conscience  or  not,  punishment,  at  all  events,  tells  people  in  plain  terms  what, 
in  the  opinion  of  the  society,  they  ought  not  to  do.  It  gives  the  multitude 
a  severe  lesson  in  public  morality;  and  it  is  difficult  to  see  how  quite  the 
same  effect  could  be  attained  by  any  other  method.  Retaliation  is  such 
a  spontaneous  expression  of  indignation,  that  people  would  hardly  realise 
the  offensiveness  of  an  act  which  evokes  no  signs  of  resentment.  Of  course, 
punishment,  in  the  legal  sense  of  the  term,  is  only  one  form  —  the  most 
concrete  form  —  of  public  retaliation;  it  is,  indeed,  probable  that  public 
opinion  exercises  a  greater  influence  on  men  than  punishment  would  do 
without  its  aid.  But  punishment,  in  combination  with  public  opinion,  has 
no  doubt  to  some  extent  an  educating,  and  not  merely  a  deterring,  influence 
upon  the  members  of  a  society."    (E.  Westermarck,  op.  cit.,  Vol.  I,  p.  90.) 


THE   MORAL   BASIS   OF   PENAL  RESPONSIBILITY  387 

of  certain  offenders  were  aroused  in  the  witnesses,  and  some- 
times even  in  the  victims  of  their  offenses.  For  example,  on 
account  of  their  youth  compassion  would  be  aroused  in  behalf 
of  young  offenders.  Sympathetic  feelings  would  arise  in  behalf 
of  offenders  who  committed  their  acts  under  the  stress  of  pecuhar 
circumstances,  such  as  the  influence  of  a  strong  passion. 

Furthermore,  as  the  causes  of  human  conduct  came  to  be 
understood  more  clearly,  the  moral  and  penal  responsibility 
of  certain  groups  was  lessened  on  the  ground  that  they  were 
incapable  of  comprehending  the  nature  of  their  acts,  and  there- 
fore could  not  intend  to  commit  wrong.  So  that  the  responsi- 
bility of  the  young,  the  feebleminded,  the  insane,  etc.,  came 
to  be  limited. 

Penal    Responsibility   and    the    Individualization    of 
Punishment 

In  this  book  I  have  described  the  physical  and  mental  traits 
of  criminals,  and  the  economic,  political  and  other  factors  which 
influence  their  conduct.  I  have  shown  the  high  degree  of  varia- 
tion between  the  traits  and  conditions  which  determine  the 
conduct  of  different  criminals,  even  when  their  acts  are  similar. 
These  facts  indicate  the  wisdom  of  treating  each  criminal  with 
due  regard  to  his  peculiar  traits  and  conditions,  and  not  treating 
all  criminals  alike.  In  fact,  the  modern  scientific  study  of  the 
criminal  and  the  causes  of  crime  has  resulted  in  the  enunciation 
of  a  new  fundamental  principle  of  penal  treatment,  namely, 
the  principle  of  the  individualization  of  punishment. 

One  of  the  most  difficult  of  the  criminological  problems  of 
today  is  to  adjust  to  each  other  and  to  harmonize  the  theory 
of  penal  responsibility  and  the  principle  of  the  individualization 
of  punishment.^  Penal  responsibility  in  the  past  has  been 
based  in  the  main  upon  the  notion  of  a  free  will  which  is  in 
theory  the  same  for  all,  though,  as  is  pointed  out  above,  various 
exceptions  arose  in  practise.  The  modern  principle  of  individual- 
ization is  based  upon  the  ascertained  facts  with  regard  to  the 

*  I  have  discussed  the  theory  of  penal  responsibility  and  the  principle 
of  the  individualization  of  punishment  at  greater  length  in  my  book  entitled 
The  Principles  of  Anthropology  and  Sociology  in  Their  Relations  to  Criminal 
Procedure,  New  York,  1908,  especially  Chapters  III,  IV,  and  V. 


388  CRIMINOLOGY 

extensive  intellectual  and  volitional  differences  between  in- 
dividual offenders. 

Now  if  penal  responsibility  is  based  upon  the  social  sanction 
for  punishment,  it  is  essential  to  take  cognizance  of  these  facts, 
inasmuch  as  according  to  this  sanction  the  purpose  of  punish- 
ment is  the  defense  of  society  against  anti-social  acts.  The 
application  of  the  principle  of  individualization  makes  this  social 
defense  much  more  effective,  because  it  adds  to  the  methods  of 
elimination  and  restraint  the  method  of  reformation.  At 
the  same  time,  the  inevitability  and  the  slight  utility  of  the 
spirit  of  vengeance  will  doubtless  always  place  a  limit  upon  the 
extent  to  which  punishment  can  be  individualized. 

These  problems  with  respect  to  the  theory  of  penal  responsi- 
bility and  the  principle  of  the  individualization  of  punishment 
will  be  discussed  in  the  following  chapter.  I  shall  show  that  a 
positive  basis  for  penal  responsibility  is  possible  in  imputing 
crime  to  the  traits  of  the  individual,  and  that  this  positive  crite- 
rion of  penal  responsibility  permits  of  a  large  measure  of  in- 
dividualization. 


CHAPTER  XXIV 

THE  SENTENCE  AND  THE  INDIVIDUALIZATION  OF 
PUNISHMENT 

The  fundamental  principle  of  modern  criminal  law  —  The  types  of  indi- 
vidualization: legal;  judicial;  administrative  —  The  criteria  of  in- 
dividualization: the  crime;  the  criminal;  social  conditions;  the  origin, 
type,  and  intensity  of  the  criminality  —  Limitations  upon  individualiza- 
tion —  The  indefinite  sentence  —  Suspension  of  sentence  and  proba- 
tion —  The  penal  treatment  of  the  young:  the  juvenile  court  —  Ju- 
dicial and  administrative  individualization:  rehabilitation;  periodical 
revision  of  sentences. 

The  accused  having  been  tried  and  found  guilty,  it  becomes 
incumbent  upon  the  court  to  impose  sentence.  In  the  following 
chapters  will  be  described  the  death  penalty,  imprisonment, 
and  other  forms  of  punishment.  At  present  we  shall  consider 
the  principles  which  should  guide  courts  in  deciding  upon  ap- 
propriate penal  treatment  for  those  convicted. 

In  recent  years  there  has  been  a  strong  tendency  to  adjust 
the  treatment  of  the  criminal  to  his  character  rather  than  to 
the  nature  of  his  crime.  This  method  has  come  to  be  known 
as  the  individualization  of  punishment.  In  the  United  States 
has  originated  the  indeterminate,  or  rather  the  indefinite,  sen- 
tence, according  to  which  the  duration  of  punishment  of  crimi- 
nals guilty  of  the  same  crime  may  vary  greatly  from  one  crim- 
inal to  another.  The  system  of  fixed  penalties  still  obtains 
almost  everywhere  in  Europe,  but  the  device  of  recognizing 
extenuating  circumstances  has  been  introduced  to  temper  the 
rigidity  of  this  system.  In  this  country  also  originated  sus- 
pension of  sentence  with  probation  or  parole,  which  has  been 
copied  in  England  under  the  name  of  conditional  release  and 
in  France  under  the  name  of  condamnation  conditionelle  or 
sursis,  and  which  now  exists  in  many  other  countries. 

Previous  to  the  French  Revolution  upon  the  European  Con- 
tinent the  fixation  of  the  penalty  was  largely  in  the  hands  of  the 
judge.     Furthermore,  the  judge  frequently  had  considerable 


39©  CRIMINOLOGY 

authority  in  deciding  what  acts  are  criminal.  This  was  a  dan- 
gerous power  in  the  hands  of  judges,  and  was  frequently  mis- 
used in  the  interests  of  despots  and  oligarchies.  It  called  forth  a 
vigorous  protest  from  the  eighteenth  century  philosophers  whose 
ideas  formed  the  basis  of  the  French  penal  code  which  was 
formulated  soon  after  the  Revolution.  The  arbitrary  power  of 
judges  had  already  come  to  be  limited  in  England  by  parliamen- 
tary government. 

The  Fundamental  Principle  of  Modern  Criminal  Law 

The  fundamental  principle  of  modern  criminal  law  is  expressed 
in  the  famous  axiom,  "nullum  crimen,  nulla  poena  sine  lege,"  or, 
as  it  is  sometimes  worded,  '-'nulla  poena  sine  lege  criminali." 
This  axiom  means  that  no  one  can  be  prosecuted  for  an  act 
which  has  not  been  made  a  crime  by  law  before  its  commission. 
This  principle  was  recognized  in  1787  in  the  section  of  the  Amer- 
ican Constitution  forbidding  ex  post  facto  legislation.  It  was 
applied  by  the  French  National  Assembly  immediately  after 
the  beginning  of  the  Revolution  in  the  famous  declaration  of 
rights  of  August  26,  1789,  and  again  in  the  law  of  January  21, 
1790,  which  is  the  basis  of  French  penal  legislation.  It  is  recog- 
nized and  safeguarded  in  all  modern  constitutional  and  statutory 
legislation. 

Modern  civilization  can  never  again  tolerate  judges  who  are 
responsible  only  to  a  monarch,  or  oligarchy,  or  aristocratic  class, 
or,  as  the  ecclesiastical  judges  claimed,  responsible  only  to  God. 
The  power  of  the  judge  must  be  legal.  That  is  to  say,  it  must 
be  conferred  upon  him  by  a  law  created  by  the  people,  or  enacted 
by  a  legislature  which  represents  the  people.  The  judge  thereby 
becomes  responsible  to  the  people  from  whom  he  derives  his 
power.  So  that  this  principle  is  an  important  democratic  prin- 
ciple which  must  always  be  safeguarded  as  a  protection  against 
autocracy  and  tyranny. 

In  accordance  with  this  principle  the  legislative  power  must 
always  specify  which  acts  are  criminal.  Otherwise  social  defense 
against  crime  would  become  no  more  than  the  expression  of  the 
private  standard  of  morality  of  the  judge,  or  of  the  monarchical 
or  oligarchical  authority  which  he  represents.  Furthermore,  the 
police  would  not  know  against  what  acts  to  take  action  as  being 
criminal. 


INDIVIDUALIZATION   OF   PUNISHMENT  39 1 

But  the  practical  application  of  the  second  part  of  the  above- 
mentioned  axiom,  namely,  ^^  nulla  poena  sine  lege,"  may  vary 
somewhat.  The  penal  code  adopted  after  the  French  Revolu- 
tion reacted  against  the  arbitrary  power  of  the  judges  by  fixing 
absolutely  the  penalty  for  each  crime.  But  this  code  was  not 
successful,  because  the  jury  insisted  upon  giving  its  verdicts  in 
accordance  with  the  penalties  they  would  entail.  Consequently, 
the  jury  was  permitted  to  recognize  extenuating  circumstances, 
and  the  penalty  was  no  longer  absolutely  fixed  by  the  law.  How- 
ever, the  individualization  of  punishment  does  not  mean  that  the 
fundamental  principle  of  modem  criminal  law  is  to  be  denied. 
Punishment  cannot  and  ought  not  to  be  inflicted  under  any 
circumstances  which  have  not  been  foreseen  by  the  law.  But 
this  principle  does  not  require  that  the  law  shall  specify  before- 
hand the  exact  amount  and  character  of  the  penalty  in  each  in- 
dividual case. 

The  Types  of  Individualization 

In  the  United  States  the  idea  of  reforming  the  criminal  has 
been  prominent.  It  resulted  in  the  early  part  of  the  nineteenth 
century  in  experiments  in  the  construction  and  administration 
of  penitentiaries  which  attracted  the  attention  of  Europe.  Later 
the  indeterminate  sentence,  suspension  of  sentence,  probation, 
etc.,  were  introduced.  These  changes  were  stimulated  mainly 
by  private  initiative,  and  have  been  put  into  effect  largely  by 
private  agencies.  They  have  been  inspired  partly  by  philan- 
thropic and  hiunanitarian  ideas,  and  partly  by  a  religious  zeal 
for  the  moral  regeneration  and  religious  conversion  of  the  crim- 
inals. In  the  latter  respect  this  kind  of  individualization  is  like 
that  of  the  canonical  law  of  the  dark  and  middle  ages  as  prac- 
tised in  the  ecclesiastical  courts.  The  judges  of  these  courts 
believed  that  justice  is  in  the  hands  of  God,  and  they  had  not 
the  objective  aim  of  adjusting  the  punishment  to  the  crime  com- 
mitted, but  the  subjective  aim  of  working  for  the  regeneration  of 
the  criminal. 

The  general  tendency  of  these  American  modifications  has 
been  towards  leniency.  Rarely,  if  ever,  has  greater  severity  of 
treatment  been  advocated.  Since  emphasis  has  been  laid  prin- 
cipally on  the  criminal  himself,  these  changes  have  been  develop- 
ing a  sort  pf  individualization.    But  it  has  not  been  inspired  by 


392  CRIMINOLOGY 

science,  and  has,  therefore,  not  been  controlled  by  scientific 
principles.  Since  little  or  no  study  of  the  criminal  has  been  made 
in  this  country,  it  has  been  almost  if  not  quite  as  empirical  as 
the  individualization  made  by  the  jury  by  means  of  the  recogni- 
tion of  extenuating  circumstances.  The  aim  of  social  defense 
has  been  rather  vaguely  conceived,  and  has,  therefore,  had  Uttle 
influence,  as  has  been  shown  by  the  almost  imiversal  tendency 
towards  leniency. 

Three  kinds  of  individualization  have  been  distinguished, 
namely,  legal,  judicial,  and  administrative.  Strictly  speaking, 
there  can  be  no  such  thing  as  legal  individualization.  The 
legislator  does  not  know  the  person  for  whom  he  is  legislating, 
and  therefore  cannot  adapt  the  penal  treatment  to  this  particular 
individual.  The  term  has  been  applied  to  laws  which  furnish 
a  basis  and  provide  for  individualization  of  other  kinds,  as,  for 
example,  a  legal  classification  of  criminals  according  to  their 
types.  But  in  order  that  this  law  may  be  applied  to  the  indivi- 
dual criminal,  the  intervention  of  another  agency  is  needed. 
Judicial  individualization  is  exercized  in  the  course  of  criminal 
procedure,  during  which  the  character  of  the  criminal  is 
diagnosed  and  appropriate  penal  treatment  is  prescribed.  Ad- 
ministrative individualization  is  effected  by  the  penal  adminis- 
tration in  the  course  of  the  penal  treatment. 

The  Criteria  of  Individualization 

A  criterion  is  needed  for  judging  the  character  of  the  crim- 
inal. The  criminal  act  is  an  uncertain  and  insuflicient  indication. 
The  motive  of  the  act  is  superior  to  the  act  as  a  criterion,  be- 
cause it  is  subjective  in  its  character.  In  the  case  of  some  crimes 
of  the  most  heinous  sort  the  motive  is  adequate  evidence  of  the 
character  of  the  criminal.  But  most  cases  are  not  so  easy  to 
decide.  There  is  usually  the  practical  difficulty  of  ascertaining 
the  motive.  Inasmuch  as  this  is  an  intangible  thing,  and  is  not 
always  revealed  by  the  circumstantial  evidence,  it  frequently 
remains  in  obscurity. 

An  individual  not  at  all  criminal  in  character  may  at  times 
commit  a  crime  with  a  bad  motive.  On  the  other  hand,  a  person 
of  a  criminal  character  may  commit  a  crime  with  a  good  motive, 
but  the  crime  may  be  such  as  could  be  committed  only  by  an 


INDIVIDUALIZATION   OF   PUNISHMENT  393 

individual  of  criminal  character,  so  that  in  such  a  case  the  act 
might  in  reality  be  a  better  indication  of  character  than  the 
motive.  Like  the  act  itself,  the  motive  usually  reveals  only  a 
small  part  of  the  personality  during  a  limited  period  of  time.  It  is 
an  indication  of  character,  and  may  serve  as  a  presumption  on 
which  to  base  further  investigation,  but  it  is  not  a  broad  enough 
basis  upon  which  to  decide  the  penal  treatment  to  be  prescribed. 

In  accordance  with  the  principle  of  social  defense  against 
crime,  the  sanction  for  punishment  is  the  dangerousness  of  the 
criminal  to  society.  The  criterion  of  judgment  is  threefold,  in- 
cluding the  crime,  social  conditions,  and  the  criminal.  In 
developing  a  criterion  of  penal  responsibility  the  whole  human 
personaUty  must  be  taken  into  account,  including  the  instincts, 
the  emotions,  the  intellect,  etc.  The  same  is  true  of  individual- 
ization. No  more  than  penal  responsibility  can  it  be  based  upon 
a  single  element  of  the  personality.  We  must,  therefore,  con- 
sider by  what  means  a  knowledge  of  the  personality  of  the  crim- 
inal can  be  secured. 

The  criminal  act  and  its  motive,  so  far  as  the  motive  can  be 
ascertained,  have  been  mentioned.  Then  there  is  the  life  history 
of  the  criminal,  revealing  his  previous  criminal  record,  if  he  has 
any  such  record,  his  education,  his  vocation,  his  manner  of  life, 
etc.  In  the  last  place,  there  are  the  facts  that  may  be  learned 
by  means  of  a  physiological  and  psychological  examination.  The 
fact  that  the  offender  is  a  professional  or  an  occasional  criminal, 
is  feebleminded  or  insane,  is  a  neurasthenic  or  an  epileptic,  is 
a  significant  indication  of  the  kind  of  penal  treatment  needed. 

Having  gathered  this  information  about  the  personality  of  the 
criminal,  in  what  ways  can  it  be  used  in  determining  his  penal 
treatment?  His  criminality  must  be  studied  from  several  points 
of  view,  namely,  from  that  of  its  origin,  of  its  type,  and  of  its 
intensity.  From  no  one  of  these  points  of  view  alone  can  the 
penal  treatment  be  determined,  but  all  must  be  considered  be- 
fore a  satisfactory  decision  can  be  reached. 

In  the  first  place,  the  origin  of  the  criminality  is  a  very  im- 
portant piece  of  evidence,  whenever  it  can  be  ascertained,  and 
should  influence  the  penal  treatment  greatly.  The  fact  as  to 
whether  the  criminality  is  congenital  or  acquired,  whether  it  is 
nervous  or  anatomical  in  its  origin,  may  cause  great  variations 
in  the  treatment  applied.     At  the  same  time,  two  forms  of 


394  CRIMINOLOGY 

criminality  with  different  origins  sometimes  require  the  same 
kind  of  treatment,  as,  for  example,  when  it  is  a  question  of  total 
elimination,  the  same  kind  of  elimination  will  serve  for  criminali- 
ties having  very  different  origins. 

In  the  second  place,  the  type  of  the  criminality,  or  the  kind 
of  crime  in  which  it  results,  must  be  considered.  The  criminals 
may  be  classified  to  a  certain  extent  according  to  their  types 
of  criminality,  with  appropriate  penalties  for  each  type.  But 
this  system  is  not  certain  to  be  accurate,  because  two  criminals 
displa3dng  the  same  type  of  criminality  may  have  different 
origins,  and  therefore  require  different  methods  of  treatment. 
For  example,  two  burglars  may  have  become  criminals  for  en- 
tirely different  reasons,  and  it  would  be  absurd  to  treat  all 
burglars  alike.  On  the  other  hand,  criminals  of  the  same  origin 
may  commit  different  kinds  of  crime,  and  yet  require  the  same 
kind  of  treatment,  on  account  of  their  similar  origin. 

In  the  third  place,  the  intensity  of  the  criminality  must  be 
considered,  namely,  as  to  whether  it  is  profound,  and  therefore 
incorrigible,  or  superficial  and  temporary,  and  therefore  reform- 
able.  If  it  is  incorrigible,  measures  of  surety,  such  as  permanent 
incarceration,  may  be  required.  If  it  is  temporary,  measures 
of  intimidation,  or  of  reformation,  may  be  needed. 

These  three  points  of  view  are  by  no  means  independent  of 
each  other,  but,  on  the  contrary,  overlap  more  or  less.  It  is 
true  that  criminalities  of  the  same  origin,  or  of  the  same  type, 
usually  need  the  same  kind  of  treatment,  and  to  a  less  degree 
that  is  also  true  of  criminalities  of  the  same  intensity.  But  all 
three  must  be  considered  before  penal  treatment  can  be  pre- 
scribed accurately. 

Limitations  upon  Individualization 

There  is  a  practical  limit  to  the  extent  to  which  the  individual- 
ization of  punishment  can  be  carried.  For  financial  reasons, 
if  for  no  other,  it  would  be  impossible  to  prescribe  special  treat- 
ment for  each  of  the  many  thousands  who  are  constantly  passing 
through  the  courts,  while  such  a  high  degree  of  individualiza- 
tion would,  as  a  rule,  have  no  utility.  It  is,  therefore,  neces- 
sary to  establish  a  more  or  less  detailed  classification  based  upon 
the  three  points  of  view  designated  above.    The  individualizing 


INDIVIDUALIZATION   OF   PUNISHMENT  395 

would  then  consist  in  determining  the  class  of  each  criminal. 
Such  a  classification  should  be  developed  out  of  the  experience 
of  the  courts  and  of  the  penal  administration,  an  experience 
tested  and  controlled  by  statistics  of  recidivism  and  of  the  ex- 
tent of  crime. 

Furthermore,  it  would  be  dangerous  to  individual  rights  and 
personal  liberty  if  unlimited  powers  of  individualization  were 
put  into  the  hands  of  the  courts  and  penal  administration.  How- 
ever efficient  these  may  become,  errors  will  always  be  possible. 
Ordinarily  these  errors  will  be  unintentional.  In  some  cases 
political  reasons  may  lead  judicial  and  administrative  officials 
to  incarcerate  indefinitely  persons  who  are  objectionable  to 
them.  Consequently,  maximum  limits  should  always  be  placed 
upon  the  powers  of  these  officials,  and  rights  of  appeal  should 
always  be  maintained.  However  desirable  individualization 
of  punishment  may  be  for  penological  reasons,  it  would  not  be 
worth  while  to  risk  endangering  fundamental  democratic  prin- 
ciples for  this  reason.  Excessive  enthusiasm  for  the  principle 
of  individualization  on  the  part  of  reformers  is  likely  to  give 
rise  to  this  danger,  especially  when  they  are  ignorant  of  the 
history  of  the  evolution  of  human  Uberty  and  personal  rights. 

There  is  also  a  serious  objection  to  individualization  which 
indicates  a  further  limitation  upon  the  application  of  this  prin- 
ciple. To  many  persons  it  appears  as  if  individualization  causes 
great  injustice,  because  it  results  in  an  inequality  of  punish- 
ment for  equal  crimes.  Consequently,  there  is  danger  that 
criminal  justice  will  be  discredited  in  the  eyes  of  the  public,  and 
measures  should  be  taken  to  avert  this  danger. 

It  is  probable  that  criminals  sometimes  feel  that  they  are 
being  treated  unjustly  when  others  who  have  been  guilty  of 
the  same  crime  receive  a  lighter  penalty.  This  can  be  obviated  in 
part  by  the  merit  system  in  the  penal  institutions.  A  criminal 
should  be  made  to  feel  that  the  severity  and  duration  of  his 
punishment  depends  largely  upon  himself,  and  that  others  are 
released  with  less  punishment  because  they  have  earned  more 
lenient  treatment.  But  it  might  also  be  desirable  if,  on  the  oc- 
casion of  every  sentence,  the  judge  would  state  publicly  the 
reasons  for  the  sentence,  thus  indicating  its  justice  both  to  the 
criminals  and  to  the  non-criminal  public.  In  this  fashion  both 
the  criminals  and  the  public  at  large  might,  in  course  of  time, 


396  CRIMINOLOGY 

be  educated  up  to  the  point  of  appreciating  the  justice  of  in- 
dividualizing punishment. 

From  the  point  of  view  of  social  defense  against  crime,  justice 
does  not  require  that  the  same  crimes  shall  always  receive  the 
same  punishment.  Justice  both  to  society  and  to  the  individual 
frequently  requires  that  the  punishment  shall  vary  greatly  in 
cases  where  the  crime  has  been  exactly  identical.  So  that  the 
alleged  injustice  of  individualizing  punishment  is  in  part  non- 
existent. However,  the  criterion  of  judgment  is  threefold,  in- 
cluding the  crime  and  social  conditions  as  well  as  the  criminal. 
To  forget  these  two  considerations,  and  to  individualize  with 
only  the  criminal  in  mind,  would  be  to  ignore  the  purpose  of 
social  defense. 

There  undoubtedly  exists  in  the  public  consciousness  a  desire 
to  punish  crimes  according  to  a  graduated  scale  of  severity. 
It  has  been  suggested  above  that  the  public  may  be  educated 
up  to  the  point  of  accepting  individualization  without  demanding 
punishment  for  the  crime.  However,  it  is  doubtful  if  the  public 
can  ever  be  induced  to  accept  thoroughgoing  individualization. 
Furthermore,  the  public  demand  for  a  graduation  of  penalties 
according  to  the  gravity  of  the  crimes  has  some  social  justifica- 
tion which  must  be  recognized. 

I  have  shown  in  the  preceding  chapter  that  the  original  sources 
of  punishment  are  the  powerful  emotions  of  fear  and  of  anger. 
These  emotions  are  prone  to  lead  the  individual  and  society 
to  acts  of  excess  in  repressing  the  objects  towards  which  these 
emotions  are  directed,  and  therefore  are  in  need  of  regulation 
and  restraint.  The  principle  of  individualization  should  furnish 
one  of  the  methods  of  regulating  the  punitive  manifestations 
of  these  emotions.  But  it  will  always  be  necessary  to  permit 
public  vengeance,  as  manifested  through  the  penal  law,  to  stig- 
matize the  graver  crimes  effectively  by  attaching  heavier  penal- 
ties to  them.  Thus  will  these  crimes  be  made  to  appear  more 
odious  even  to  those  who  have  no  thought  of  committing  them, 
and  the  standard  of  public  morality  can  thereby  be  raised.  In 
this  fashion  the  public  can  display  its  displeasure  against  dan- 
gerous anti-social  conduct  as  personified  by  the  criminals  who 
commit  these  acts. 

It  is  evident,  therefore,  that  the  principle  of  individualiza- 
tion must  be  adjusted  to  the  need  for  indicating  the  relative 


INDIVIDUALIZATION   OF  PUNISHMENT  397 

gravity  of  crimes.  This  is  not  an  easy  task,  and  can  be  accom- 
plished only  through  extensive  experience.  Crimes  may  be 
graded  according  to  their  gravity  in  the  penal  code.  But  this 
is  not  a  sufficiently  concrete  and  tangible  mode  of  gradation, 
so  that  they  must  also  be  graded  according  to  the  kind  or  the 
duration  of  the  penalties  inflicted  upon  them. 

The  Indefinite  Sentence 

The  indefinite  sentence,  frequently  miscalled  the  "indeter- 
minate" sentence,  combines  in  a  measure  the  principle  of  indi- 
vidualization and  a  recognition  of  the  gravity  of  the  crime.  So 
far  as  I  know,  a  purely  indeterminate  sentence  has  never  been 
put  into  efifect.  That  is  to  say,  a  law  providing  for  an  entirely 
indeterminate  sentence  has  never  been  enacted.  But  many 
laws  have  been  enacted  providing  for  a  partially  indeterminate 
or  indefinite  sentence,  in  which  a  maximum  and  sometimes  a 
minimum  limit  for  the  duration  of  the  sentence  is  specified.  The 
first  law  of  this  nature  was  enacted  in  the  State  of  New  York, 
April  24, 1877,  and  provided  for  the  release  on  parole  of  prisoners 
from  Elmira  Reformatory,  before  the  end  of  their  term  of  im- 
prisonment. Such  a  law  is  absolutely  necessary  for  a  reforma- 
tory system.  Similar  laws  have  since  been  enacted  in  various 
other  states  and  countries  for  reformatories.  The  principle  of 
the  indefinite  sentence  has  also  been  extended  to  imprisonment 
in  other  kinds  of  penal  institutions,  so  that  sentences  to  peniten- 
tiaries are  frequently  not  absolutely  fixed,  but  vary  between  a 
minimum  and  a  maximum. 

One  of  the  principal  traits  of  the  indefinite  sentence  is  the 
appeal  it  makes  to  the  self  interest  of  the  criminal.  In  the 
reformatories  the  release  is  determined  mainly  by  the  progress 
the  inmate  makes  in  learning  a  trade,  and  in  his  school  work. 
In  the  penitentiaries  the  release  is  determined  in  the  main  by 
the  conduct  of  the  prisoner,  a  record  of  which  is  kept  by  means 
of  marks  and  a  system  of  grading.  It  is  questionable  if  this  is  a 
good  criterion  of  the  fitness  of  the  criminal  to  be  liberated.  The 
worst  of  criminals  frequently  display  the  best  conduct  in  the 
prisons.  The  criterion  for  liberation  should  rather  be  the  char- 
acter of  the  criminal,  and  the  reformatory  system  is  much  more 
likely  to  judge  criminal  character  aright. 


398  CRIMINOLOGY 

The  decision  as  to  the  duration  of  the  sentence  within  the 
limits  imposed  by  law  is  made  in  many  reformatories  and  other 
penal  institutions  by  a  parole  board  composed  in  part  or  entirely 
of  persons  outside  of  th^  prison  management.  By  placing  this 
power  outside  of  the  prison  administration  a  check  is  placed 
upon  its  work,  thus  answering  the  criticism  sometimes  made 
of  the  indefinite  sentence  that  it  puts  too  much  power  in  the 
hands  of  the  prison  keeper.  It  is  probable  also  that  in  some  if 
not  in  many  cases  the  power  of  releasing  from  the  penal  institu- 
tions should  be  given  to  the  judges  who  have  imposed  the  sen- 
tences, and  who  could  exercize  this  power  by  means  of  the 
periodical  revision  of  sentences. 

In  view  of  the  limitations  upon  the  principle  of  individualiza- 
tion which  have  been  described  above,  it  is  evident  that  an  in- 
determinate sentence  is  out  of  the  question.  It  would  indeed 
be  incompatible  with  democratic  principles  to  put  an  unre- 
stricted power  of  incarcerating  for  an  indefinite  period  in  the 
case  of  most  crimes  in  the  hands  of  a  single  person  or  group  of 
persons.  In  Europe  it  took  several  centuries  of  struggle  to 
deprive  the  judges  who  represented  autocracies  and  oligarchies 
of  this  power.  The  Europeans,  therefore,  display  a  wholesome 
fear  of  the  indeterminate  sentence.^  In  this  country,  unfor- 
tunately, there  are  some  prison  reformers  who,  lacking  an 
historical  background  and  an  acquaintance  with  fundamental 
political  principles,  have  advocated  an  indeterminate  sentence, 
and  have  in  some  cases  succeeded  in  securing  an  indefinite  sen- 
tence which  is  too  extended  in  its  scope.^ 


1  It  is  interesting  to  note  that  at  the  International  Prison  Congress  at 
Washington  in  1910  the  European  delegates  opposed  vigorously  the  prin- 
ciple of  the  indeterminate  sentence,  and  even  displayed  some  hostility  to 
the  indefinite  sentence. 

2  An  illustration  of  such  an  indefinite  sentence  is  to  be  found  in  a  law 
enacted  in  New  York  State  in  1915.  This  law  provides  for  a  parole  com- 
mission in  each  of  the  first  class  cities  (New  York,  Buffalo,  and  Rochester) 
in  the  state.  The  commission  is  to  consist  of  three  members  appointed  by 
the  mayor,  the  commissioner  of  correction,  ex  officio,  and  the  commissioner 
of  police,  ex  oflBcio.  This  commission  is  to  have  jurisdiction  over  the  release 
of  prisoners  from  the  workhouses,  penitentiaries,  and  reformatories  adminis- 
tered by  these  cities.  The  great  majority  of  the  inmates  of  these  penal  in- 
stitutions have  been  convicted  of  misdemeanors.  The  severest  penalty  im- 
posed for  a  misdemeanor  in  the  New  York  State  Penal  Code  is  one  year's 


INDIVIDUALIZATION   OF   PUNISHMENT  399 

But  a  considerable  amount  of  individualizing  can  be  accom- 
plished between  the  limits  of  the  indefinite  sentence,  while  the 
relative  gravity  of  the  various  offenses  can  be  recognized  and 
indicated  by  the  maximum  limits  of  their  respective  penal- 
imprisonment  and  a  fine  of  five  hundred  dollars.  In  spite  of  this  fact,  the 
parole  commission  can  keep  an  inmate  in  the  penitentiary  for  three  years, 
and  in  the  workhouse  for  two  years  for  certain  offenses. 

"The  duration  of  the  commitment  of  any  person  to  the  penitentiary  shall 
not  be  fixed  or  limited  by  the  court  in  imposing  sentence,  except  that  the 
term  of  such  imprisonment  in  the  said  institution  shall  not  exceed  three 
years,  and  such  imprisonment  shall  be  terminated  as  prescribed  in  section 
five  of  this  act.  The  duration  of  the  commitment  of  any  person  to  a  work- 
house shall  be  for  a  definite  period  not  to  exceed  six  months,  provided, 
however,  that  if  it  shall  become  known  to  the  court  through  competent 
evidence  at  any  stage  of  the  proceeding  prior  to  the  imposition  of  sentence 
that  any  person  convicted  of  vagrancy,  disorderly  conduct  tending  to  a 
breach  of  the  peace,  public  prostitution,  soliciting  on  streets  or  public  places 
for  the  purposes  of  prostitution,  or  frequenting  disorderly  houses,  or  a  house 
of  prostitution,  of  the  violation  of  section  one  hundred  and  fifty  of  chapter 
ninety-nine  of  the  laws  of  nineteen  hundred  and  nine,  as  amended,  has  been 
convicted  of  any  or  each  of  these  ofTenses  two  or  more  times  during  the 
twenty-four  months  just  previous,  or  three  or  more  times  previous  to  that 
conviction,  then  the  court  shall  commit  such  offender  to  a  workhouse,  of 
the  said  department  of  correction  in  said  city  for  an  indeterminate  period 
which  shall  not  exceed  two  years."  {Laws  of  New  York,  1915,  Chap.  579, 
Section  4.) 

According  to  the  annual  report  of  the  Department  of  Correction  of  New 
York  City  for  1915,  there  were  in  the  Penitentiary  of  that  city  during  that 
year  84  inmates  for  disorderly  conduct,  129  for  disorderly  house  keeping, 
248  for  intoxication,  935  for  petit  larceny,  382  for  vagrancy,  etc.  In  other 
words,  there  were  several  thousand  inmates  guilty  only  of  minor  offenses 
who  could  be  kept  in  prison  for  three  years  at  the  discretion  of  the  parole 
commission.  During  the.  same  year  there  were  in  the  City  Workhouse  over 
twelve  thousand  inmates  guilty  of  the  six  petty  offenses  mentioned  in  the 
law,  for  committing  which  offenses  two,  or  three,  or  more  times  the  parole 
commission  could  keep  them  in  prison  for  two  years.  It  is  unwise  to  impose 
absolutely  fixed  penalties  upon  these  offenders,  many  of  whom  are  not  in 
the  least  benefited  by  imprisonment.  But  it  is  unjust  and  dangerous  to 
place  the  power  of  keeping  these  petty  offenders  in  prison  for  two  or  three 
years  in  the  hands  of  a  parole  commission  representing  solely  the  mayor. 
This  would  indeed  be  an  easy  method  of  "railroading"  to  prison  opponents 
of  the  city  administration,  or  political  offenders.  Even  if  this  should  never 
happen,  it  is  grossly  unjust  to  these  petty  offenders  who  have  no  recourse 
from  the  decisions  of  the  commission,  and  no  protection,  except  that  magis- 
trates and  judges  who  commit  to  the  workhouse  and  reformatory  may  sit 
with  the  parole  commission  when  it  is  considering  the  eligibility  for  parole 
of  persons  sentenced  by  them. 


400  CRIMINOLOGY 

ties.^  Furthermore,  recidivism  should  be  recognized  by  the  law 
as  an  aggravating  circumstance,  and  the  penalty  should  be  in- 
creased accordingly,  thus  enlarging  the  opportunity  for  individ- 
ualization.^ 

Suspension  of  Sentence  and  Probation 

Another  recent  modification  of  criminal  procedure  which 
increases  somewhat  the  scope  of  individualization  is  the  suspen- 
sion of  sentence,  which  releases  a  criminal  from  punishment  on 
condition  of  good  behavior  in  the  future.  Like  the  indefinite 
sentence,  this  reform  originated  in  the  United  States.  It  was 
first  introduced  for  juvenile  criminals  under  the  name  of  proba- 
tion in  Massachusetts  in  1869,  and  for  adults  in  Boston  in  1878. 
Since  then  it  has  been  adopted  in  many  states.  In  England  the 
"Probation  of  First  Offenders  Act"  was  enacted  in  1887.  It  is 
also  known  as  conditional  release  in  England.  But  this  is  a  mis- 
leading name  because  it  may  be  confused  with  the  conditional 
liberation  of  criminals  who  have  served  a  term  of  imprisonment. 
It  was  first  introduced  upon  the  continent  in  Belgium  by  the 

^  In  New  York  State  the  so-called  "indeterminate"  sentence  law  for  state 
prisons  reads  as  follows:  — 

"A  person  never  before  convicted  of  a  crime  punishable  by  imprisonment 
in  a  state  prison,  who  is  convicted  in  any  court  in  this  state  of  a  felony 
other  than  murder  first  or  second  degree,  and  sentenced  to  a  prison,  shall 
be  sentenced  thereto  under  an  indeterminate  sentence,  the  minimum  of 
which  shall  not  be  less  than  one  year,  or  in  case  a  minimum  is  fixed  by  law, 
not  less  than  such  minimum;  otherwise,  the  minimum  of  such  sentence  shall 
not  be  more  than  one-half  the  longest  period  and  the  maximum  shall  not 
be  more  than  the  longest  period  fixed  by  law  for  which  the  crime  is  punish- 
able of  which  the  offender  is  convicted.  The  maximum  limit  of  such  sen- 
tence shall  be  so  fixed  as  to  expire  during  either  of  the  following  months: 
April,  May,  June,  July,  August,  September  and  October."  (N.  Y.  Penal 
Code,  1915,  Section  2189.) 

^  In  New  York  State  the  law  recognizes  the  following  persons  as  habitual 
criminals:  — 

"Where  a  person  is  hereafter  convicted  of  a  felony,  who  has  been,  before 
that  conviction,  convicted  in  this  state,  of  any  other  crime,  or  where  a  person 
is  hereafter  convicted  of  a  misdemeanor  who  has  been  already  five  times 
convicted  in  this  state  of  a  misdemeanor,  he  may  be  adjudged  by  the  court, 
in  addition  to  any  other  punishment  inflicted  upon  him,  to  be  an  habitual 
criminal."    (A''.  Y.  Penal  Code,  1915,  Section  1020.) 

According  to  the  Code,  an  habitual  criminal  is  subject  to  special  super- 
vision of  the  local  authorities  even  when  he  is  at  liberty. 


INDIVIDUALIZATION   OF  PUNISHMENT  40I 

Le  Jeune  law  enacted  in  1888,  and  was  adopted  in  France  by 
means  of  the  Berenger  law  which  was  enacted  in  1891.  In  Bel- 
gium and  France  it  is  known  under  the  name  of  cofidamnation 
conditionelle  or  sursis.  Since  that  time  it  has  been  adopted 
in  several  other  European  countries,  such  as  Portugal,  Norway, 
Luxemburg,  etc. 

In  this  country  the  power  of  suspending  sentences,  which 
judges  under  the  common  law  could  do  temporarily,^  has  been 
greatly  extended  in  some  states,  as,  for  example,  in  New  York.^ 
But  several  precautions  are  taken  against  the  abuse  of  this 
privilege  by  the  criminals.  The  sentence  is  suspended  only  on 
condition  of  good  behavior,  and  may  be  imposed  later  if  the 
criminal  misbehaves.  If  a  judge  has  reason  to  believe  that  a 
criminal  whose  sentence  has  been  suspended  is  not  leading  an 
honorable  and  useful  life,  he  can  summon  the  criminal  to  court 
and  inflict  the  penalty  originally  suspended.  Furthermore,  if 
the  criminal  is  convicted  of  another  crime,  the  original  penalty 
can  be  inflicted  in  addition  to  the  penalty  for  the  new  crime,  for 
which  he  is  treated  as  a  recidivist.  Another  precaution  is  the 
work  of  the  probation  officer  in  whose  custody  the  criminal  is 
usually  placed,  and  who  watches  over  him  for  a  time  after  his 
release. 

In  England,  no  surveillance  is  maintained  over  the  criminal 
after  he  is  released  on  condition,  but  he  is  required  to  give  bond 
for  good  conduct.  A  similar  system  exists  in  Massachusetts, 
where  the  probation  officer  has  to  act  as  surety  for  the  good 
conduct  of  the  criminal,  thus  stimulating  the  vigilance  of  the 
officer. 

^  In  a  recent  decision  of  the  Supreme  Court  of  the  United  States  (Ex  parte 
United  States,  Petitioner,  37  Sup.  Ct.  72)  the  Chief  Justice  declared  that 
under  the  common  law  a  judge  could  only  stay  the  execution  of  a  sentence 
temporarily,  until  an  appeal  in  behalf  of  the  convicted  person  could  be 
made  to  the  Crown.    (See  Central  Law  Journal,  Feb.  2,  1917.) 

*  When  a  court  must  pass  sentence  "such  court  may  in  its  discretion  sus- 
pend sentence,  during  the  good  behavior  of  the  person  convicted,  where  the 
maximum  term  of  imprisonment  prescribed  by  law  does  not  exceed  ten  years 
and  such  person  has  never  been  convicted  of  a  felony.  Courts  of  special 
sessions  are  empowered  to  suspend  sentence  and  at  any  time  within  the 
longest  period  for  which  the  defendant  might  have  been  sentenced,  may 
issue  process  for  the  re-arrest  of  the  defendant,  and  when  arraigned  the 
court  as  it  is  then  constituted  may  proceed  to  enter  judgment  and  impose 
sentence."    {N.  Y.  Penal  Code,  1915,  Section  2188.) 


402  CRIMINOLOGY 

On  the  European  Continent,  no  surveillance  is  exercized,  and 
there  is  no  bond  for  good  conduct.  The  suspension  of  sentence 
is  sacrificed  only  in  case  of  a  new  crime.  But,  on  the  other  hand, 
the  power  of  suspending  sentence  has  been  given  very  little 
scope  on  the  Continent,  since  it  is  limited  usually  to  sentences 
no  longer  than  six  months.  It  can,  therefore,  be  applied  only 
to  the  milder  offenses. 

Suspension  of  sentence  is  granted  usually  only  to  first  offend- 
ers, even  when  this  is  not  expressly  required  by  the  law.  The 
underlying  theory  is  that  those  who  are  not  criminals  by  birth 
or  habit,  but  who  have  committed  crime  through  force  of  cir- 
cumstances, shall  be  given  a  chance  to  retrieve  themselves,  to 
begin  life  over  again. 

The  success  of  suspending  sentences  must  depend  largely  upon 
the  wisdom  of  the  judge.  Inasmuch  as  the  existing  procedure  is 
intended  primarily  to  ascertain  the  kind  of  criminal  act  which 
has  been  committed,  and  not  to  reveal  the  character  of  the 
criminal,  it  is  only  incidentally  and  by  chance,  as  it  were,  that 
the  judge  learns  anything  about  criminal  character.  It  is, 
therefore,  on  the  basis  of  a  comparatively  small  amount  of 
knowledge  that  he  makes  his  decision.  •  The  result  is  that  he  is 
likely  to  acquire  the  habit  of  granting  suspension  of  sentence  in 
accordance  with  the  circumstances  of  the  crime,  and  not  accord- 
ing to  the  character  of  the  criminal.  Under  one  set  of  circum- 
stances he  will  almost  always  grant  the  suspension,  while  under 
another  set  of  circumstances  he  will  almost  invariably  refuse  it. 
At  other  times  he  will  not  be  absolutely  certain  of  guilt,  and  will 
therefore  grant  the  suspension  as  a  sort  of  compromize.  • 

The  judge  is  more  likely  to  make  a  wise  decision  when  he  is 
aided  by  a  probation  officer.  After  conviction  he  can  remand 
the  prisoner  without  imposing  a  sentence  immediately,  and  can 
direct  the  officer  to  make  an  investigation.  The  officer  ascer- 
tains all  the  available  facts  with  regard  to  the  character  and  past 
history  of  the  criminal,  and  as  much  as  possible  about  the  cir- 
cumstances under  which  his  crime  was  committed.  He  reports 
this  information  to  the  judge,  frequently  with  a  recommendation 
as  to  the  best  method  of  disposing  of  the  case.  With  the  aid  of 
this  information  the  judge  can  usually  make  a  much  wiser  deci- 
sion. Furthermore,  through  the  probation  officer  the  judge  is 
able  to  keep  in  touch  with  the  criminal  after  his  conditional 


INDIVIDUALIZATION   OF   PUNISHMENT  403 

release,  and  to  impose  the  sentence  if  the  criminal  proves  by  his 
conduct  that  the  confidence  of  the  judge  has  been  misplaced. 

In  this  country  the  probation  system  has  been  developed 
largely  by  private  philanthropic  agencies.  Much  of  this  proba- 
tion work  has  been  done  by  volunteer  workers  who  have  been 
well-meaning,  but  many  of  whom,  on  account  of  lack  of  special 
training  and  experience  and  a  sentimental  point  of  view,  have 
not  been  very  efficient.  Some  of  the  probation  work  has  been 
done  by  policemen,  who,  on  account  of  their  lack  of  education 
and  prejudiced  attitude  towards  criminals,  are  peculiarly  un- 
fitted for  such  work.  This  work  should  be  done  by  men  and 
women  who  have  had  special  criminological  and  penological 
training,  and  who  are  employed  by  the  state.  It  would  then  be 
done  as  efficiently  as  is  possible  under  the  existing  system.  As  I 
have  pointed  out  in  Chapter  XIX,  under  public  defense  most 
of  the  functions  of  the  probation  officer  will  be  taken  over  by  the 
public  defender  and  performed  much  more  eflfectively  by  him. 

The  probation  system,  therefore,  has  its  utility  as  a  substitute 
for  something  worse,  and  as  preparing  the  way  for  something 
better.  It  is  especially  adapted  for  occasional  criminals.  It 
can  frequently  be  used  for  young  offenders.  Suspension  of 
sentence  frequently  is  a  good  substitute  for  short  periods  of 
imprisonment.  These  penalties  have  little  utility  for  young  and 
occasional  criminals,  and  are  likely  to  harm  them  greatly  by 
placing  them  under  corrupting  influences.  So  that  it  is  usually 
better  to  release  these  offenders  conditionally,  especially  if  they 
can  go  out  under  the  care  of  a  probation  officer. 

The  utility  of  suspended  sentences  depends  somewhat  upon 
local  conditions.  It  is  not  always  beneficial  for  the  criminal  to 
be  returned  to  the  environment  in  which  he  has  committed  his 
crime.  Furthermore,  his  release  may  have  a  bad  effect  upon 
others,  who  may  commit  crimes  because  they  have  seen  him 
return  unpunished.  In  some  cases  the  plaintiff  is  incensed 
because  the  person  who  has  injured  him  has  not  been  punished, 
and  may  take  the  law  into  his  own  hands  in  order  to  secure  his 
revenge.  It  has  been  suggested  that  the  consent  of  the  injured 
party  should  be  obtained  before  a  suspension  of  sentence  can  be 
granted.  But  this  is  too  important  a  power  to  give  to  private 
individuals,  and  would  furnish  the  opportunity  for  the  manifes- 
tation of  feelings  of  vengeance. 


404  CRIMINOLOGY 

There  is,  however,  another  feature  of  penal  treatment  which 
should  be  connected  with  the  suspension  of  sentence,  and  which 
would  counteract  partially  if  not  entirely  these  tendencies 
towards  vengeance  on  the  part  of  the  plaintiff.  The  offender 
should  be  required  to  pay  damages  to  the  injured  party  as  a 
condition  of  his  release.  If  the  damages  are  too  large,  he  should 
pay  in  proportion  to  his  ability.  At  present  the  plaintiff  is 
forced  to  commence  a  civil  suit  for  damages,  which  is  usually  a 
costly  and  uncertain  proceeding.  It  is  only  just  to  the  injured 
party  that  the  offender  should  make  restitution  as  far  as  he  is 
able.  Furthermore,  this  requirement  acts  as  a  salutary  check 
upon  the  offender  who  is  conditionally  released,  and  impresses 
strongly  upon  his  mind  the  injurious  effect  of  his  crime  upon 
his  victim.  In  this  country  the  judges  occasionally  make 
restitution  a  condition  of  release,  instructing  the  probation 
officer  to  make  sure  that  the  restitution  is  made,  while  they 
threaten  the  offender  with  the  execution  of  the  sentence  if  he 
fails  to  make  restitution.  In  a  later  chapter  will  be  discussed 
the  principle  of  restitution  as  a  fundamental  principle  of  penal 
treatment. 

The  Penal  Treatment  of  the  Young 

In  no  respect  has  the  individualization  of  punishment  been 
carried  so  far  as  in  the  penal  treatment  of  young  offenders.  In 
all  probability  they  have  always  been  treated  somewhat  dif- 
ferently from  adults.  Their  immaturity  and  ignorance  have 
made  it  impossible  to  hold  them  as  strictly  accountable  for 
their  acts  as  adults.  Furthermore,  their  dependence  upon 
their  parents  and  subjection  to  parental  control  have  given 
them  a  peculiar  legal  status.  Recently  the  idea  has  been  gaining 
currency  that,  because  his  character  and  habits  are  not  fixed,  it  is 
possible  to  reform  the  young  criminal,  and  that,  therefore,  penal 
treatment  should  be  adapted  to  this  purpose  rather  than  to 
punishment. 

The  principal  change  in  the  legal  status  of  the  young  offender 
has  been  with  respect  to  his  penal  responsibility.  Most  of  the 
systems  of  penal  legislation  now  assume  that  all  criminals  under 
a  specified  age,  usually  sixteen,  have  committed  their  offenses 
without  discernment,  or  at  least  admit  proof  of  lack  of  discern- 
ment on  account  of  youth.     The  penalties  are  then  adjusted 


ESTDIVIDUALIZATION  OF  PUNISHMENT  405 

according  to  whether  or  not  discernment  has  been  proved,  in 
either  case  the  punishment  being  less  severe  than  for  adults.  In 
some  legislations  an  age  still  lower  is  designated  below  which  no 
child  can  be  presumed  to  be  responsible.  Any  treatment  given 
to  these  children  is  with  no  punitive  object  whatever.  In  the 
common  law  this  age  was  seven. 

On  account  of  the  great  importance  of  individualization  in 
the  treatment  of  young  oflfenders,  little  weight  should  be  given 
to  penal  responsibility,  and  the  penal  treatment  should  be  pre- 
scribed as  far  as  possible  in  accordance  with  the  needs  of  each 
offender.  This  is  all  the  more  feasible  in  juvenile  cases  because 
of  the  difference  in  the  public  attitude  towards  the  child  and 
towards  the  adult  criminal,  and  because  of  the  greater  utility 
of  educational  and  reformatory  agencies  than  intimidatory 
punishment  in  the  penal  treatment  of  children.  This  difference 
in  the  attitude  of  the  public  and  the  realization  of  the  utility  of 
these  agencies  have  caused  the  changes  which  have  already 
taken  place  in  the  procedure  and  penal  treatment  for  children. 

The  principal  changes  in  the  procedure  for  young  offenders 
are  exemplified  in  the  juvenile  courts.  These  courts  have  grown 
out  of  the  probation  system,  which  was  usually  intended  at 
first  solely  for  young  offenders.  Inasmuch  as  this  system  gave 
rise  to  some  changes  in  the  procedure,  the  juvenile  cases  were 
usually  tried  apart  from  adult  cases.  This  in  turn  resulted  in 
special  legislation  with  regard  to  the  procedure  to  be  followed 
in  juvenile  cases.  At  present  the  juvenile  courts  exist  in  varying 
stages  of  development.  In  some  places  they  have  not  yet 
passed  beyond  the  initial  stage  of  trying  juvenile  cases  at  a 
different  hour  from  the  adult  cases,  though  in  the  same  room 
and  by  the  same  judge.  In  other  places  the  juvenile  cases  are 
heard  in  a  different  room  or  building,  usually  by  judges  specially 
designated  for  this  purpose.  The  procedure  also  varies  con- 
siderably. 

The  juvenile  cases  are  heard  apart  from  the  adult  cases  in 
order  to  save  the  children  from  being  corrupted  by  older  crim- 
inals, and  also  in  order  to  emphasize  the  peculiar  problems  in- 
volved in  juvenile  cases.  The  publicity  of  the  proceedings  is 
usually  diminished  by  holding  the  trials  in  a  small  courtroom, 
or  in  the  judge's  chambers.  The  purpose  is  in  some  cases  not  to 
alarm  the  child,  in  other  cases  not  to  stimulate  his  vanity  by 


406  CRIMINOLOGY 

making  him  feel  that  he  is  in  the  pubh'c  eye.  Legal  formalities 
are  dispensed  with  as  much  as  possible.  A  jury  is  not  used  ordi- 
narily, though  the  law  frequently  requires  a  jury  trial  if  it  is 
demanded  by  the  defense.  Lawyers  are  used  but  little.  Fre- 
quently a  public  prosecutor  is  not  present,  and  the  form  of  a 
trial  is  dispensed  with.  In  other  words,  a  trial,  strictly  speaking, 
is  not  held.  This  is  feasible  because  the  crimes  of  children 
usually  are  petty,  and  are  committed  with  more  or  less  pub- 
licity. A  child  will  usually  admit  an  offense  with  a  little  ques- 
tioning. A  trial  can  therefore  be  dispensed  with,  and  the  judge 
conducts  an  examination  to  ascertain  the  cause  of  the  ofifense 
and  the  character  and  circumstances  of  the  child.  The  judge  is 
assisted  in  this  work  by  the  probation  officer. 

The  methods  of  treatment  which  may  be  used  by  the  juvenile 
courts  are  varied.  Whenever  advisable,  the  child  is  left  in  the 
family  under  the  supervision  of  the  probation  officer.  But  this 
is  not  always  possible,  sometimes  because  the  child  is  incor- 
rigible and  cannot  be  controlled  by  its  parents,  sometimes  be- 
cause the  family  life  is  bad  for  the  child  on  account  of  the  vicious- 
ness  of  its  parents,  or  for  some  other  reason.  In  that  case,  the 
child  is  sent  to  the  institution  which  is  best  adapted  to  give  to 
it  the  education  and  discipline  it  needs.  The  length  of  deten- 
tion is  usually  indefinite,  the  maximum  limit  being  the  age  of 
majority  of  the  child,  which  in  most  jurisdictions  is  twenty-one 
years. 

These  facts  indicate  how  far  the  juvenile  court  movement 
has  individualized  the  treatment  of  young  offenders.  In  some 
of  these  cases  the  crime  is  almost  entirely  ignored.  The  judicial 
treatment  of  young  offenders  has  in  some  places  become  an 
agency  of  the  educational  system.  This  is  an  excellent  solution 
in  some  cases.  But  there  is  danger  of  forgetting  the  true  sig- 
nificance of  criminal  acts.  The  criminal  act  frequently  is  the 
signal  of  congenital  abnormality  in  the  criminal.  When  such 
abnormality  is  the  cause  of  crime  in  the  child,  society  needs  to 
be  protected  against  it  as  much  as  when  it  manifests  itself  in 
an  adult.  Expert  criminological  knowledge  should  be  used  to 
diagnose  the  criminal  tendencies  of  the  child,  in  order  that 
appropriate  measures  may  be  taken  against  these  tendencies. 
Society  must  be  guarded  against  anti-social  tendencies  which 
are  as  dangerous  in  the  young  as  they  are  in  adults,  though  not 


INDIVIDUALIZATION   OF   PUNISHMENT  407 

always  so  immediate  in  their  dangerousness.  And  at  times 
individualization  has  to  be  sacrificed  in  the  interests  of  social 
defense  against  crime. 

The  question  may  be  raised  as  to  whether  the  procedure  in 
juvenile  cases  should  be  separated  entirely  from  the  procedure 
in  other  criminal  cases.  The  chief  significance  of  the  juvenile 
court  movement  is  that  in  breaking  away  from  the  old  procedure 
it  is  preparing  the  way  for  a  new  procedure  for  adults  as  well 
as  for  children.  The  juvenile  court  movement  should  lead  the 
way  to  a  procedure  based  upon  a  scientific  knowledge  of  the 
criminal  and  of  the  causes  of  crime,  such  as  can  be  gained  only 
through  the  science  of  criminology.  When  that  time  comes  it 
may  be  discovered  that  the  procedure  for  children  and  for 
adults  need  not  diflfer  greatly. 

The  efficiency  of  a  juvenile  court  depends  largely  upon  the 
judge.  In  his  hands  is  put  a  great  deal  of  power,  which  he  is 
free  to  use  more  or  less  arbitrarily.  Consequently,  he  should 
be  well  acquainted  with  young  offenders  and  their  offenses,  in 
order  to  be  able  to  judge  juvenile  cases  wisely.  That  is  why 
it  is  frequently  contended  that  the  juvenile  court  judge  should 
serve  continuously  in  the  juvenile  court.  When  he  comes  to 
the  juvenile  cases  from  the  trial  of  other  cases,  he  is  likely  to 
bring  with  him  a  legal  point  of  view  which  is  out  of  place  in  a 
juvenile  court.  Furthermore,  the  authority  of  the  judge  over 
the  children  does  not  end  with  the  decision  of  their  cases,  but 
it  continues  as  long  as  they  are  on  probation,  or  in  the  institu- 
tions from  which  they  can  be  discharged  only  with  his  permis- 
sion. It  is,  therefore,  important  that  he  should  be  acquainted 
from  its  beginning  with  the  history  of  each  individual  case 
coming  under  his  authority. 

At  the  same  time,  it  is  doubtful  if  it  would  be  advisable  to 
develop  an  entirely  specialized  group  of  juvenile  court  judges. 
It  is  essential  that  a  judge  on  the  criminal  bench  should  be  ac- 
quainted with  the  traits  both  of  the  young  and  the  older  crim- 
inals, in  order  to  be  able  to  judge  properly  the  cases  either  of 
the  young  offenders  or  of  the  adult  criminals.  So  that  a  certain 
amount  of  interchange  between  the  juvenile  courts  and  the 
other  criminal  courts  will  probably  always  be  desirable.^ 

'  Detailed  descriptions  of  the  probation  system  and  the  juvenile  courts 
are  given  in  several  books,  among  them  being  the  following:  —  B.  Flexner 


4o8  CRIMINOLOGY 

Judicial  and  Administrative  Individualization 

By  means  of  rehabilitation  the  criminal  record  of  an  individual 
may  be  effaced.  In  France  there  are  two  kinds  of  rehabilita- 
tion, legal  and  judicial.  In  the  case  of  certain  crimes,  when  a 
specified  time  has  elapsed  after  the  expiration  of  the  sentence, 
the  record  of  the  conviction  is  automatically  effaced  by  the  law 
without  any  action  being  necessary  on  the  part  of  the  criminal, 
provided  there  has  been  no  recidivism.  The  time  which  must 
elapse  depends  upon  the  length  of  the  sentence,  and  is  usually 
several  times  as  long  as  the  sentence.  In  the  case  of  other 
crimes,  after  being  released  from  prison  on  conditional  liberation, 
the  convicted  person  may  under  certain  circtunstances  secure 
judicial  rehabilitation  from  a  court.  Inasmuch  as  a  criminal 
record  usually  injures  materially  the  future  prospects  of  an  ex- 
convict,  it  is  of  some  assistance  to  secure  the  effacement  of  the 
ofl&cial  written  record,  to  say  the  least,  though  this  does  not 
efface  it  from  the  memories  of  men. 

In  this  chapter  I  have  been  describing  judicial  individuali- 
zation in  particular.  This  must  be  combined  with  adminis- 
trative individualization,  in  order  to  make  a  complete  system 
of  individualization.  Such  a  system  requires,  on  the  one 
hand,  a  classification  of  the  different  types  of  criminals,  and, 
on  the  other  hand,  a  classification  of  penalties  or  methods  of 
penal  treatment.  The  types  of  criminals  have  been  de- 
scribed in  earlier  chapters.  Capital  punishment,  imprisonment, 
and  the  other  penalties  will  be  described  in  the  following 
chapters. 

Judicial  and  administrative  individualization  should  be  con- 
nected and  coordinated  with  each  other  by  means  of  the  re- 
vision of  sentences.  From  time  to  time  after  a  penalty  has 
been  imposed  the  sentence  should  be  revized  by  the  court  with 
the  aid  and  cooperation  of  the  officials  who  administer  the 
penalty.  As  the  penal  system  becomes  more  and  more  scientific 
in  its  organization,  it  will  become  more  and  more  feasible  to 
discern  accurately  the  character  of  the  criminal,  and  to  adjust 
the  penalty  accordingly.    So  that  within  the  necessary  limita- 

and  R.  N.  Baldwin,  Juvenile  Courts  and  Probation,  New  York,  1914;  Cecil 
Leeson,  The  Probation  System,  London,  1914;  Douglas  Pepler,  Justice  and 
the  Child,  London,  1915. 


INDIVIDUALIZATION  OF  PUNISHMENT  409 

tions  upon  individualization  it  will  become  possible  for  the 
court  of  revision  to  individualize  wisely.  ^ 

1  It  has  been  suggested  that  the  court  of  revision  should  be  called  the 
"court  of  rehabilitation."  (See  R.  B.  Molineux,  The  Court  of  Rehabilitation, 
in  Charities  and  the  Commons,  September  28,  IQ07.) 

At  present  the  term  "rehabilitation"  is  applied  customarily  to  the  oflB- 
cial  eflacement  of  the  record  of  a  crime.  This  function  will  doubtless  be 
jaerformed  by  the  revizing  court.  But  inasmuch  as  most  of  its  work  will 
consist  of  revizing  sentences  and  penalties,  it  is  preferable  to  designate  it 
as  a  "court  of  revision"  rather  than  as  a  "court  of  rehabilitation." 


CHAPTER  XXV 
THE  DEATH  PENALTY 

Arguments  for  and  against  capital  punishment  —  The  abolition  of  the  death 
penalty  —  Humanitarian  sentiment  and  the  death  penalty  —  The 
death  penalty  and  political  crime  —  Methods  of  capital  punishment. 

The  most  drastic  penalty  is  death.  Capital  punishment 
has  been  much  used  in  the  past.  For  example,  as  recently  as 
1797  in  England  "the  number  of  capital  offences  without  bene- 
fit of  clergy  was  160,  and  it  rose  to  222,  when  the  efforts  of  Sir 
S.  Romilly  for  reform  in  this  matter  succeeded  only  so  far  as  to 
have  pocket-picking,  which  was  capital  above  one  shilling,  taken 
out  of  the  list  of  capital  offences,"  ^  During  the  nineteenth 
century  most  of  the  capital  offenses  were  abolished  in  all  civil- 
ized countries,  while  the  death  penalty  has  been  entirely  abol- 
ished in  a  few  countries.^ 

In  modem  times  the  wisdom  and  justice  of  the  death  penalty 
has  been  hotly  debated,  and  an  extensive  controversial  literature 
upon  this  subject  has  arisen.  In  fact,  more  attention  has  been 
given  to  this  subject  than  it  really  deserves.  A  large  part  of 
this  literature  is  of  a  mawkishly  sentimental  nature,  especially 
the  writings  against  the  death  penalty,  and  can  therefore  be 
disregarded.  Some  of  this  literature  presents  weighty  argu- 
ments for  and  against  capital  punishment,  and  is  therefore 
worthy  of  serious  consideration. 

1  E.  F.  Du  Cane,  The  Punishment  arid  Prevention  of  Crime,  London,  1885, 
p.  18.  See  also  L.  O.  Pike,  A  History  of  Crime  in  England,  Vol.  II,  London, 
1876,  pp.  447-453- 

^  Capital  punishment  has  been  abolished  in  Brazil,  Costa  Rica,  Holland, 
Italy,  Norway,  Portugal,  Russia,  Venezuela,  in  three  Mexican  States 
(Campeche,  Pueblo,  Yucatan),  and  in  fifteen  out  of  the  twenty-two  Swiss 
Cantons. 

The  death  penalty  has  been  abolished  in  the  United  States  in  eleven 
States,  namely,  Arizona,  Kansas,  Maine,  Michigan,  Minnesota,  North 
Dakota,  Oregon,  Rhode  Island,  South  Dakota,  Washington,  Wisconsin. 
It  has  been  abolished  and  restored  in  Colorado  and  Iowa. 


the  death  penalty  41i 

Arguments  for  and  Against  Capital  Punishment 

The  two  principal  arguments  in  favor  of  capital  punishment 
are  the  following:  The  first  is  that  death  is  the  most  eflfective 
manner  of  removing  permanently  dangerous  members  of  society. 
The  second  is  that  capital  punishment  has  a  greater  deterrent 
influence  upon  criminals  and  potential  criminals  than  any  other 
penalty,  because  it  is  presumably  the  most  fearful.  Attempts 
have  been  made  to  prove  by  statistical  methods  the  great  de- 
terrent influence  of  punitive  death.  But  it  is  obviously  difficult 
to  measure  a  phenomenon  so  subtle  as  the  intimidatory  effect 
of  any  form  of  punishment,  and  this  is  especially  true  of  capital 
punishment.  In  every  case  complicating  factors  are  present 
which  vitiate  in  a  measure  any  conclusion  which  is  drawn  from 
the  available  figures.^ 

It  goes  without  saying  that  the  same  diflSculties  beset  any 
attempt  to  disprove  the  deterrent  influence  of  capital  punish- 
ment.^ All  the  more  true  is  this  of  the  attempts  made  by  some 
opponents  of  capital  punishment  to  prove  that  not  only  does 
capital  punishment  fail  to  deter  from  crime,  but  that  it  actually 
mcites  to  crime.  While  this  has  unquestionably  been  proved  in 
a  few  specific  cases,  it  is  impossible  to  prove  it  by  statistical 
means  for  the  effect  of  capital  punishment  in  general.  In  all 
probability  the  death  penalty  has  a  powerful  deterrent  influence, 
perhaps  more  so  than  any  other  penalty.  But  on  account  of 
these  difficulties  in  the  way  of  the  statistical  method,  I  shall  view 
capital  punishment  mainly  from  a  standpoint  somewhat  broader 
than  its  immediate  deterrent  effect. 

The  two  principal  arguments  against  capital  punishment  are 
the  following:    The  first  is  that  death  is  an  irrevocable  penalty, 

^One  of  the  best  attempts  to  correlate  increase  of  criminality  with  a 
diminishing  use  of  capital  punishment  has  been  made  by  A.  Lacassagne, 
Peine  de  mart  et  criminality,  Paris,  1908.  But  even  this  study  cannot  be 
regarded  as  conclusive. 

*  Many  opponents  of  capital  punishment  have  tried  to  disprove  by  sta- 
tistical methods  the  deterrent  influence  of  this  penalty.  See,  for  example, 
K.  d'Olivecrona,  De  la  peine  de  mort,  Paris,  1868;  J.  Oldfield,  The  Penalty 
of  Death  or  the  Problem  of  Capital  Punishment,  London,  1901;  F.  Emory 
Lyon,  Is  Capital  Punishment  Justified?,  in  The  South  Mobilizing  for  Social 
Service,  published  by  the  Southern  Sociological  Congress,  Nashville,  1913, 
pp.  193-203.  Most  of  these  attempts  have  been  grosslj'  illogical,  and  have 
been  inspired  by  sentiment  but  not  controlled  by  science. 


412  CRIMINOLOGY 

In  cases  of  judicial  error  it  is  impossible  to  do  anything  in  the 
way  of  amendment  and  indemnification  after  the  penalty  has 
been  inflicted.  The  second  is  that  this  penalty  violates  human- 
itarian sentiment  and  regard  for  human  life  by  deliberately 
destroying  human  life. 

What  then  are  we  to  say  with  respect  to  these  arguments  for 
and  against  capital  punishment?  It  is  unnecessary  to  deny  that 
punitive  death  has  had  social  utility  in  the  past.  In  the  earlier 
days  police  protection  was  weak,  and  it  was  difficult  to  inflict 
long  continued  penalties  such  as  imprisonment.  It  was,  there- 
fore, inevitable  that  when  criminals  were  apprehended,  severe 
and  summary  penalties  were  inflicted  upon  them,  both  for  the 
purpose  of  making  them  horrible  examples,  and  in  order  to 
check  them  efi"ectually  in  their  criminal  careers.  These  penalties 
became  all  the  more  harsh  when  the  anathema  of  religion  and 
the  vindictiveness  of  a  despot  or  ruling  class  made  the  penal  law 
more  rigorous. 

How  much  deterrent  influence  these  penalties  exercized  it  is 
impossible  for  us  to  ascertain  now.  But  it  is  probable  that  they 
served  to  a  certain  extent  as  a  selective  force  to  eliminate  anti-» 
social  individuals.  That  they  also  served  as  a  brutalizing  factor 
is  also  probable,  but  this  was  not  a  matter  of  so  much  conse- 
quence under  the  ruder  conditions  and  folkways  which  prevailed 
at  that  time. 

But  social  conditions  have  greatly  changed  in  all  of  these 
respects  during  the  past  century  or  two.  Police  protection  has 
become  much  more  efficient,  and  criminals  are  now  pursued 
more  relentlessly  and  more  effectively  probably  than  at  any 
time  in  the  past.  It  is  now  possible  to  choose  from  a  greater 
variety  of  penalties,  and  to  apply  penalties  more  suitable  to  the 
specific  crime  and  the  individual  criminal.  These  changes 
are  already  reflected  in  the  disappearance  of  many  of  the  severe 
and  summary  penalties,  and  in  the  general  amelioration  of  penal 
treatment. 

The  Abolition  of  the  Death  Penalty 

The  question  can,  therefore,  be  pertinently  raised  on  em- 
inently practical  grounds  as  to  whether  or  not  the  death  penalty, 
already  greatly  restricted  by  the  law  in  its  scope,  cannot  be 
entirely  dispensed  with.    In  the  first  place,  it  is  now  within  the 


THE   DEATH   PENALTY  413 

bounds  of  possible  attainment  to  segregate  permanently  the 
offenders  who  have  shown  that  they  will  always  menace  the 
safety  and  welfare  of  society.  The  great  difficulty  at  present 
in  the  way  of  such  permanent  segregation  is  the  misuse  by 
executives  of  the  pardoning  power.  It  is  frequently  difficult  for 
an  executive  to  withstand  the  sentimental  or  political  pressure 
which  is  brought  to  bear  upon  him  to  exercize  clemency  where 
there  is  no  justification  for  such  clemency.  As  soon  as  the  par- 
doning power  is  abolished  and  the  function  of  revizing  sentences 
is  placed  in  the  hands  of  scientific  boards  in  the  manner  de- 
scribed in  the  preceding  chapter,  this  difficulty  will  disappear. 
It  will  then  be  possible  to  use  scientific  knowledge  to  determine 
which  criminals  should  be  permanently  segregated,  instead  of 
leaving  the  decision  of  these  important  questions  to  arbitrary 
legal  standards  and  to  the  fortuitous  exercize  of  the  pardoning 
power  by  executives. 

Furthermore,  in  all  probability  permanent  segregation  will 
in  the  long  run  have  as  great  if  not  a  greater  deterrent  influence 
than  the  death  penalty,  because  few  criminals  can  face  the 
prospect  of  perpetual  incarceration  with  greater  equanimity 
than  they  do  face  the  prospect  of  death.  This  will  be  all  the 
more  true  because  permanent  segregation  under  the  conditions 
described  will  be  more  certain  than  capital  punishment  today. 

At  present  the  death  penalty  is  very  uncertain  as  a  deterrent 
force,  because  it  is  frequently  difficult  to  induce  juries,  judges, 
and  executives  to  inflict  it.  This  is  due  sometimes  to  an  aversion 
against  the  deliberate  destruction  of  human  life,  and  sometimes 
to  a  realization  of  the  fallibility  of  human  justice,  which  may 
make  an  error  which  is  irredeemable  if  the  death  penalty  is 
inflicted.  Statistics  have  been  compiled  which  indicate  that 
acquittals  are  much  more  frequent  in  homicide  cases  where  the 
death  penalty  prevails  than  they  are  where  capital  punishment 
has  been  abolished.^  This  fact  suggests  that  the  death  penalty 
tends  to  restrain  courts  from  convicting  in  many  cases  where 
there  is  ample  evidence  for  conviction.  Still  another  factor 
which  diminishes  the  certainty  of  the  death  penalty  is  the  plea 
of  insanity  which  is  constantly  being  invoked  with  more  or  less 
success  under  our  present  system  of  procedure  to  avert  this  pen- 

^  Cf.  Maynard  Shipley,  Does  Capital  Punishment  Prevent  Punishments?, 
in  the  American  Law  Review,  Vol.  43,  May-June,  1909,  pp.  321-334. 


414  CRIMINOLOGY 

alty.  These  weaknesses  in  our  system  of  penal  repression  are  to  a 
large  extent  responsible  for  the  excessive  number  of  homicides  in 
this  country.^  They  are  responsible  also  for  many  of  the 
lynchings. 

Another  factor  which  will  make  life  imprisonment  more 
effective  as  a  deterrent  influence  will  be  a  more  efficient  ad- 
ministration of  penal  institutions  and  of  the  police,  thus  making 
escapes  much  more  difficult.  This  will  be  all  the  more  true 
because  as  time  goes  by  the  number  of  criminals  in  prison  will 
doubtless  decrease  greatly.  This  will  be  due  in  part  to  a  de- 
crease in  the  extent  of  crime,  but  mainly  to  the  substitution  of 
other  forms  of  penal  treatment  in  the  place  of  incarceration 
within  the  walls  of  prisons.  So  that  enforced  residence  in  re- 
form schools,  reformatories,  and  farm  and  industrial  colonies, 
restitution,  custodial  surveillance,  etc.,  will  take  the  place  to  a 
large  extent  of  imprisonment  in  the  usual  sense  of  that  term. 
This  will  simplify  greatly  the  problem  of  preventing  escapes, 
because  there  will  then  remain  in  prison  only  the  hopeless  crim- 
inals who  are  comparatively  few  in  number,  and  who  have  been 
condemned  to  perpetual  confinement.  At  present  the  problem 
of  preventing  escapes  is  greatly  complicated  by  the  presence 
in  prisons  of  a  vast  number  of  criminals  of  many  diverse  types 
requiring  different  kinds  of  treatment.  The  importance  of  giving 
many  of  them  a  certain  measure  of  freedom  in  the  prison  life 
makes  it  all  the  more  difficult  to  keep  the  few  incorrigible  ones 
in  strict  confinement. 

The  death  penalty  is  the  most  arbitrary  of  all  punishments, 
and  is  therefore  a  serious  obstacle  in  the  way  of  individualiza- 
tion. This  is  clearly  illustrated  in  the  case  of  the  crime  to  which 
capital  punishment  is  now  almost  exclusively  restricted,  namely, 
murder.  Many  murders  are  committed  in  fits  of  passion  by 
persons  who  are  otherwise  non-criminal.  Some  of  them  are 
committed  by  paranoiacs  and  other  lunatics  who  are  laboring 
under  insane  delusions.  Some  of  these  insane  murderers  are 
possessed  by  homicidal  manias  which  are  frequently  due  to 
sadistic  tendencies.  Some  murders  are  committed  by  robbers, 
burglars,  and  other  professional  criminals  whose  primary  object 
is  not  homicidal,  but  who  commit  murder  in  order  to  accom- 
plish their  primary  criminal  purpose,  which  is  usually  to  steal. 
1  See  Chapter  XXI. 


THE   DEATH  PENALTY  415 

It  is  obviously  stupid  to  inflict  the  same  penalty  on  all  of 
these  different  types  of  murderers.  It  is  true  that  there  has 
always  been  a  certain  amount  of  individualization  in  practise, 
because  juries,  judges,  and  executives  have  frequently  dis- 
cerned the  differences  between  these  different  types,  and  have 
varied  the  penal  treatment  accordingly.  For  example,  mur- 
derers by  passion  have  frequently  escaped  from  the  courts 
without  any  punishment  or  with  mild  penalties.  But,  on  the 
other  hand,  many  insane  or  feebleminded  murderers  have 
been  sent  to  the  scaffold  because  their  mental  infirmity  has 
not  been  discovered,  while  the  plea  of  insanity  has  sometimes 
been  successfully  used  as  a  cloak  for  the  protection  of  the  pro- 
fessional criminal  who  had  committed  murder.  The  abolition 
of  the  arbitrary  death  penalty  would  make  more  feasible  the 
individualization  of  the  penal  treatment  of  murderers. 

The  abolition  of  capital  punishment  would  prevent  the  irre- 
vocability of  punishment  in  every  case  of  judicial  error.  Fur- 
thermore, it  is  obviously  feasible  to  devize  other  penalties  which 
would  be  as  effective  in  preventing  incorrigible  criminals  from 
preying  upon  society,  and  which  would  probably  be  as  deterrent 
in  their  effect  upon  other  criminals  and  potential  criminals. 
Perpetual  confinement  is,  of  course,  the  principal  one  of  these 
penalties.  But  this  could  be  inflicted  in  different  ways.  If 
the  criminal  is  sane  and  not  feebleminded,  incarceration  in  a* 
prison  for  life  would  usually  be  the  most  appropriate  penalty. 
But  if  the  criminal  is  feebleminded  or  hopelessly  insane,  he 
should  be  confined  for  life  in  an  asylum  for  the  feebleminded 
criminals  or  for  the  criminal  insane. 

It  has  been  suggested  that  castration  might  be  used  as  a 
supplementary  penalty  in  these  cases.  This  operation  has  such 
an  effect  upon  the  character  as  to  tend  to  check  the  individual 
from  committing  acts  of  violence,  though  it  seems  to  do  injury 
to  the  character  in  other  ways  by  stimulating  lying,  deceitful- 
ness,  cowardice,  etc.  Consequently,  castration  might  make 
these  criminals  more  amenable  to  prison  discipline,  while  if  by 
any  chance  they  returned  to  society  it  would  restrain  them  from 
homicide  and  similar  acts  of  violence,  and  would  prevent  them 
from  procreating.  ^ 

*  Cf.  Servier,  La  peine  de  mart  remplacSe  par  la  castration,  in  the  Arch, 
d'anth.  crim.,  Vol.  XVI,  March,  1901,  pp.  1 29-141. 


4l6  CRIMINOLOGY 

There  still  remains  the  objection  to  the  abolition  of  the  death 
penalty  that  it  would  entail  a  considerable  expense  upon  so- 
ciety to  maintain  in  existence  the  incorrigible  criminals  for  the 
duration  of  their  natural  lives.  This  expense  can  be  partly 
if  not  entirely  removed  by  forcing  these  criminals  to  engage 
in  productive  labor  within  the  prisons.  But  even  if  this  expense 
must  be  incurred,  there  are  other  gains  from  the  abolition  of 
the  death  penalty  which  will  more  than  compensate  society  for 
this  expense. 

Humanitarian  Sentiment  and  the  Death  Penalty 

I  have  already  indicated  that  mawkish  sentimentality  with 
respect  to  the  death  penalty  should  be  repudiated.  If  it  were 
indeed  necessary  to  social  welfare  to  put  to  death  the  worst  of 
the  criminals,  there  should  be  no  opposition  to  it  on  sentimental 
grounds.  There  would  be  no  excuse  whatsoever  for  wasting  any 
sympathy  upon  the  criminals  themselves.^    But  there  is  ample 

"En  resume,  voici  ce  que  nous  avons  propose  et  cherche  k  demontrer:  il 
est  k  desirer  que  la  peine  de  mort,  proc^de  barbare,  soit  abolie;  elle  serait 
remplacee,  sans  desavantage,  par  la  peine  de  Feunuquage,  laquelle,  bien 
que  ne  supprimant  pas  le  criminel,  le  met  dans  un  etat  d'inferiorite  telle 
qu'il  ne  demeure  plus  un  etre  nuisible  et  dangereux,  et,  surtout,  previent 
la  venue  au  monde  de  creatures  tarees  par  un  vice  originel,  operant  ainsi 
une  selection  eminennent  favorable  k  I'amelioration  de  la  race."    (P.  140.) 

1  At  the  time  of  the  present  writing  (August,  191 7)  a  notorious  homicide 
in  New  York  City  (the  De  Saulles  case)  illustrates  the  vicious,  mawkish 
sympathy  frequently  displayed  by  a  considerable  portion  of  the  public  in  be- 
half of  murderers.  A  woman  shot  her  former  husband  to  death,  apparently 
with  deliberation  and  in  cold  blood.  Immediately  she  began  issuing  state- 
ments which  blackened  the  character  of  her  victim,  who  could  no  longer 
defend  hiniself  because  she  had  killed  him.  The  sensational  newspapers 
aided  her  by  publishing  her  defamatory,  statements  and  many  facts  and 
alleged  facts  about  her  which  were  calculated  to  arouse  s3Tnpathy  in  her 
behalf. 

Unfortunately,  in  accordance  with  our  law  it  is  possible  for  the  defense 
to  introduce  into  the  court  proceedings  these  slanderous  statements  in  con- 
nection with  a  plea  of  insanity,  while  the  reputation  of  the  victim  of  the 
murderer  cannot  be  defended.  As  a  New  York  newspaper  has  said  with 
reference  to  this  case,  "this  opens  the  door  to  the  loosest  scandal  and  even 
to  slander,  and  by  the  rulings  of  our  courts  the  dead  man's  friends  cannot 
have  the  privilege  of  a  defendant  in  any  other  case,  cannot  introduce  evi- 
dence in  his  behalf.  However  it  may  go  with  his  slayer,  the  dead  man  is 
always  convicted,  sentenced  and  punished,  though  it  is  upon  those  who  loved 
him  that  the  real  punishment  falls."    (New  York  Times,  August  10,  191 7.) 


THE   DEATH  PENALTY  417 

reason  to  believe  that  capital  punishment  should  be  abolished 
in  deference  to  humanitarian  sentiment  which  cannot  be  ignored. 

The  most  salient  feature  of  the  modern  humanitarian  move- 
ment is  the  manner  in  which  it  has  enhanced  the  value  of  human 
life.  This  has  been  manifested  in  numerous  attempts  to  cure 
the  sick,  to  prevent  infant  mortality,  to  reduce  the  mortality 
from  warfare,  to  prevent  wars,  etc.^  It  is  inevitable,  therefore, 
that  the  deliberate  taking  away  of  human  life  by  a  social  agency 
must  shock  this  humanitarian  sentiment  regarding  the  supreme 
value  of  human  life.  Furthermore,  deliberate  homicide,  how- 
ever legal  in  form  and  moral  in  intent  it  may  be,  must  inevitably 
have  at  least  a  slight  brutalizing  effect  upon  society  at  large. 
So  that,  quite  apart  from  its  effect  upon  crime,  there  is  ample 
justification  for  abolishing  capital  punishment  because  of  its 
effect  upon  society  in  general,  most  of  whose  members  are  in 
no  danger  whatever  of  committing  the  crimes  punished  by 
the  death  penalty.  In  fact,  it  is  probable  that,  even  if  it  were 
desirable  to  retain  the  death  penalty  for  the  prevention  and 
suppression  of  crime,  it  would  still  be  justifiable  to  abolish  capi- 
tal punishment  on  account  of  the  above  considerations. 

In  this  connection  we  may  compare  punitive  death  with  war. 
There  is  no  occasion  to  defend  warfare,  which  is  one  of  the  great- 
est of  social  evils,  far  greater  than  the  death  penalty  could  ever 
be.  Furthermore,  it  is  needless  to  add  that  the  mortality  from 
warfare  is  vastly  greater  than  the  mortality  from  capital  punish- 
ment, and  that  the  death  penalty  is  inflicted  upon  persons  who 
can  be  dispensed  with  by  society  far  more  readily  than  most  of 
those  who  are  lost  in  war.  It  is  nevertheless  true  that  much  of 
the  killing  of  himian  beings  in  wartime  is  committed  under  the 
influence  of  passion  which  frequently  reaches  a  state  of  moral 
exaltation.  The  death  penalty,  on  the  contrary,  is  invariably 
the  most  deliberate  and  cold-blooded  form  of  legalized  homicide. 
So  that  the  brutalizing  effect  of  capital  punishment  probably 
is  greater  in  proportion  to  the  number  of  lives  destroyed  than  is 
the  brutalizing  effect  of  warfare. 

Nor  is  it  possible  to  escape  the  conviction  that  the  death 

^  See  my  Poverty  and  Social  Progress,  New  York,  19 16,  Chap.  XVII,  en- 
titled "The  Modem  Humanitarian  Movement." 

See  also  my  article  entitled  The  Rise  of  Modern  Humanitarianism,  in  the 
Am.  Jour,  of  Sociology,  Vol.  XXI,  No.  3,  November,  1915,  pp.  345-359. 


4l8  CRIMINOLOGY 

penalty  is  the  most  vindictive  form  of  punishment,  and  is  all 
the  more  repellent  as  such  because  it  is  deliberate  and  cold- 
blooded. This  is  clearly  illustrated  in  the  case  of  murder,  which 
is  the  crime  to  which  it  now  is  almost  exclusively  restricted. 
It  is  obvious  that  this  is  a  survival  of  the  lex  talionis,  the  taking 
of  a  life  for  a  life.  Like  most  of  the  poetic  penalties,  it  is  prob- 
ably not  the  most  efficacious  method  of  checking  and  preventing 
the  crime  to  which  it  is  applied. 

It  may  be  said  that  in  many  cases  the  death  penalty  is  not 
so  severe  as  life  imprisonment  would  be.  But  this  is  not  at 
present  recognized  in  inflicting  the  penalty.  If  it  were,  the 
culprit  would  be  given  the  choice  between  death  and  life  impris- 
onment. So  far  as  I  know,  this  choice  is  nowhere  accorded  to 
the  condemned  person  by  the  law,  though  the  death  sentence  is 
frequently  commuted  to  life  imprisonment  by  the  executive 
power. 

The  Death  Penalty  and  Political  Crime 

So  far  I  have  been  discussing  capital  punishment  for  common 
crimes  alone.  In  the  past  death  has  been  the  usual  penalty 
for  treason,  and  it  still  is  so  at  law  for  some  kinds  of  treason  in 
most  if  not  all  countries,  though  rarely  inflicted  in  many  coim- 
tries.  In  a  few  countries,  such  as  Russia,  it  is  inflicted  for  polit- 
ical offenses  but  not  for  common  crimes.^  It  is  hardly  neces- 
sary to  state  that  there  can  be  no  excuse  for  the  supreme  pen- 
alty for  political  offenses  in  time  of  peace.  In  such  cases  it  can 
serve  only  as  a  bulwark  for  tyranny,  and  as  an  obstacle  to  polit- 
ical progress.  No  form  of  government  which  needs  to  bolster 
itself  up  with  the  aid  of  the  death  penalty  is  worthy  of  survival. 
A  government  which  rests  upon  the  will  of  the  people  and  which 
is  responsive  to  the  wishes  of  its  citizens  can  well  dispense  with 
this  penalty.^ 

^The  above  statement  was  written  previous  to  the  Revolution  of  19 17, 
which  abolished  the  death  penalty  for  political  offenses  in  Russia. 

2  Viaud  has  given  an  exhaustive  and  convincing  exposition  of  the  argu- 
ments against  the  death  penalty  for  political  offenses.  (J.  Viaud,  La  peine 
de  mort  en  matiere  politique,  Paris,  1902.)  He  points  out  how  unjust  and 
stupid  it  is  for  any  democratic  government  to  make  use  of  this  penalty. 
"Pour  r^tablir  chez  nous  la  peine  de  mort  en  mati^e  politique,  un  gouveme- 
ment  ne  devrait  pas  seulement  faire  parade  du  mepris  le  plus  absolu  de 


THE  DEATH   PENALTY  419 

In  time  of  war  the  situation  changes  somewhat.  Taking  war 
as  it  is,  and  must  always  be,  it  is  inevitable  that  death  should 
be  inflicted  upon  spies  and  others  guilty  of  treason.  It  is  hardly 
possible  to  modify  martial  and  military  law  in  this  respect. 
The  only  way  of  dispensing  with  the  death  penalty  in  these 
cases  is  to  prevent  war  itself. 

Methods  of  Capital  Punishment 

These  humanitarian  and  political  considerations,  as  well  as 
those  already  adduced,  indicate  that  capital  punishment  should 
be  abolished.  But  so  long  as  it  continues  to  exist,  it  should  be 
shorn  as  far  as  possible  of  its  obnoxious  and  injurious  features. 
This  is  attempted  in  all  civilized  countries. 

In  the  past  it  was  customary  to  inflict  the  death  penalty  in 
public,  probably  usually  for  exemplary  reasons.  But  it  came  to 
be  realized  gradually  that  publicity  did  not  increase  its  deter- 
rent influence.  In  fact,  it  only  tended  to  give  to  it  a  value  in  the 
eyes  of  vain  and  mentally  ill-balanced  persons  who  craved  this 
publicity.  Furthermore,  publicity  increased  greatly  its  bru- 
talizing effect  upon  society  at  large.  For  these  reasons  public 
executions  have  become  rare  in  civilized  countries. 

It  is  also  attempted  in  the  civilized  world  to  make  the  death 
penalty  painless,  and  to  avoid  unnecessary  mutilation  of  the 
body.  In  order  that  an  execution  may  be  devoid  of  pain,  it  is 
essential  that  death,  or  at  least  loss  of  consciousness,  should 
come  at  once.  In  some  methods  of  execution  it  is  difficult  to 
determine  just  when  consciousness  ceases.  Hanging  is  used  in 
many  states  in  this  country,  in  England,  and  elsewhere.  When 
properly  carried  out  it  breaks  the  neck  at  once,  so  that  in  all 
probability  no  pain  is  experienced.  Electrocuting  is  used  in  a 
few  states  in  this  country.  It  is  a  clean  way  of  causing  death, 
and  does  not  mutilate  the  body.  But  there  is  still  a  little  un- 
certainty as  to  whether  or  not  there  are  a  few  seconds  of  excruci- 
ating pain  before  consciousness  is  lost.^    Shooting  is  used  in  a 

toute  6quit6,  il  faudrait  le  supposer  aveugle  jusqu'^  la  folic  du  suicide 
moral."    (P.  360.) 

^  Spitzka  expresses  the  opinion  that  electrocution  is  always  painless,  but 
that  hanging  frequently  causes  pain.  (E.  A.  Spitzka,  Observations  Regard- 
ing the  Infliction  of  the  Death  Penalty  by  Electricity,  in  the  Proc.  of  the  Am. 
Philosophical  Sac,  Vol.  XLVII,  No.  188,  Jan.-Apr.,  1908,  pp.  39-50.) 


420  CRIMINOLOGY 

few  countries,  as  in  Austria,  and  is  an  effective  method  with 
little  mutilation  when  properly  carried  out.  Beheading  by  means 
of  the  guillotine  is  used  in  France.  This  is  a  sure  method  of 
bringing  about  instantaneous  death,  but  it  seriously  mutilates 
the  body. 

I  do  not  know  to  what  extent  poisoning  is  now  used,  but  it 
has  been  a  popular  method  in  the  past.  It  is  a  clean  and  effective 
method,  and  is  painless  if  properly  applied.  It  is  possible  that 
a  choice  of  several  methods  should  be  offered  to  the  condemned 
person.  This  is  the  case  in  Nevada,  where  the  choice  is  between 
shooting  and  hanging.^ 

In  the  last  place,  I  should  like  to  emphasize  again  the  impor- 
tance of  reforming  criminal  procedure  so  that  the  plea  of  insanity 
will  be  properly  used  and  feeblemindedness  will  be  recognized. 
By  so  doing  the  murderers  who  are  incapable  of  understanding 
the  nature  of  their  acts  will  be  saved  from  the  death  penalty. 
In  this  manner  the  injustice  of  executing  morally  irresponsible 
persons  will  be  prevented. 

'  Criminal  Practice,  Section  431.  "The  punishment  of  death  shall  be  in- 
flicted by  hanging  the  defendant  by  the  neck  until  he  is  dead,  or  by  shoot- 
ing him,  at  his  election.  If  the  defendant  refuse  or  neglect  to  make  the 
election,  the  court  at  the  time  of  rendering  the  sentence  must  declare  the 
mode  of  execution  and  enter  the  same  as  a  part  of  its  judgment."  (Revised 
Laws  of  Nevada,  Carson  City,  1912.) 


CHAPTER  XXVI 
THE  PRISON  SYSTEM 

The  types  of  prisons  —  The  cellular  prison  —  Development  of  the  per- 
sonality of  the  prisoner  —  Prison  administrators  —  Solitary  and  social 
prison  life  —  Classification  of  prisoners  —  Prison  labor:  prison  mainte- 
nance; wage  labor  for  prisoners  —  Evils  of  contract  labor  —  Educa- 
tional, religious,  and  recreational  facilities  —  Prison  discipline:  causes 
■  of  misconduct  in  prison;  malingering;  prison  penalties;  the  marking 
system  —  Self  government  in  prisons  —  Sex  problems  in  prisons  — 
The  prison  psychosis  —  The  prison  type. 

The  characteristic  feature  of  the  prison  system  in  the  nine- 
teenth century  has  been  the  cell.  A  few  cellular  prisons  were 
built  previous  to  the  nineteenth  century.  But  cellular  confine- 
ment was  most  widely  used  during  the  nineteenth  century.  It 
was  in  a  measure  due  to  a  reaction  against  the  type  of  imprison- 
ment prevalent  during  the  eighteenth  century.  At  that  time 
prisoners  were  mingled  together  with  little  or  no  attempt  at 
segregation  or  classification.  The  physical  and  moral  evils 
arising  from  this  indiscriminate  and  heterogeneous  method  of 
imprisonment  were  disclosed  by  prison  reformers.  It  was  en- 
deavored to  prevent  these  evils  by  segregating  the  prisoners 
as  completely  as  possible  in  individual  cells.  It  was  thought  that 
by  separating  the  criminal  from  evil  companions  and  by  placing 
him  in  solitude  he  would  be  encouraged  to  repent  from  his  mis- 
deeds and  to  acquire  a  contrite  heart.  This  type  of  imprison- 
ment came  to  be  known  in  this  country  as  the  Pennsylvania 
system,  because  it  was  introduced  at  an  early  date  into  the  East- 
em  State  Penitentiary  of  Pennsylvania  located  at  Philadelphia. 

At  the  same  time  the  idea  that  prisoners  should  be  made  to 
work  was  becoming  prevalent.  It  was  discovered  that  it  was 
bad  for  the  prisoners  themselves  to  remain  idle,  while  it  was  bad 
for  society  that  they  should  be  unproductive  during  the  period 
of  incarceration.  Consequently,  it  was  attempted  to  introduce 
systems  of  prison  labor.  But  this  soon  caused  difficulties  with 
respect  to  the  solitary  method  of  confinement.   While  there  were 


422  CRIMINOLOGY 

a  few  kinds  of  labor  which  could  be  carried  on  in  the  cells,  most 
of  the  forms  of  industry  suitable  for  the  prison  had  to  be  carried 
on  in  large  workshops.  Consequently,  there  arose  a  compromize 
between  the  solitary  and  the  social  system  of  imprisonment. 
The  prisoners  were  marched  into  the  workshops  to  work  during 
the  day  under  strict  supervision,  but  were  kept  in  solitude  the 
rest  of  the  time.  This  system  has  come  to  be  known  in  this 
country  as  the  Auburn  system  from  the  New  York  State  Prison 
at  Auburn.  It  is  the  prevailing  prison  system  in  this  country 
at  the  present  time. 

There  are  several  kinds  of  penal  institutions  which  are  prisons 
or  which  partake  of  the  nature  of  prisons.  Places  of  temporary 
detention,  such  as  police  stations,  are  prisons  in  the  sense  that 
persons  are  forcibly  detained  in  them.  But  they  are  used  prin- 
cipally for  the  detention  of  persons  who  are  not  necessarily 
criminals,  such  as  defendants  in  criminal  trials,  witnesses,  etc. 
So  that  they  are  not  prisons  in  the  full  meaning  of  the 
term. 

Jails,  such  as  city  and  county  jails,  are  local  prisons,  to  which 
criminals  are  usually  committed  only  for  short  sentences.  A 
workhouse  is  a  type  of  jail  in  which  work  is  required  of  the  in- 
mates. Agricultural  penal  colonies  are  farms  upon  which  crim- 
inals are  forced  to  work,  and  where  they  are  kept  under  a  certain 
measure  of  restraint.  But  there  is  more  freedom  in  one  of  these 
penal  farm  colonies  than  there  is  in  an  ordinary  prison. 

Industrial  reform  schools  are  partially  penal  institutions  to 
which  criminal  and  wayward  children  are  committed.  Here 
they  are  kept  under  some  restraint.  But  it  is  usually  attempted 
to  make  these  institutions  more  like  trade  schools  than  prisons. 
The  industrial  reformatories  are  prisons  for  young  criminals  who 
furnish  some  hope  of  reform.  But  they  are  educational  and 
industrial  institutions  as  well  as  prisons. 

Penal  institutions  have  been  established  for  pathological 
types  of  criminals.  Among  these  are  a  few  criminal  inebriate 
asylums,  and  a  number  of  criminal  insane  asylums. 

The  state  and  national  penitentiaries  are  prisons  to  which 
criminals  are  ordinarily  committed  for  long  terms. 

I  shall  now  describe  the  problems  of  prison  construction  and 
administration  which  are  involved  to  a  greater  or  less  degree  in 
the  establishment  and  management  of  every  kind  of  penal 


THE  PRISON   SYSTEM  423 

institution.    I  shall  then  describe  more  specifically  the  differ- 
ences between  the  various  types  of  prisons. 

The  Cellular  Prison 

There  are  two  principal  types  of  cell  building.  One  type  has 
corridors  just  inside  the  outer  walls  of  the  building.  In  the  other 
type  a  corridor  runs  through  the  center  of  the  building. 

The  first  type  is  the  most  common  in  this  country.  Rows  of 
cells  are  set  back  to  back  in  the  center  of  the  building.  The  cells 
receive  light  and  air  from  the  corridors  and  not  directly  from  the 
outside.  The  following  arguments  are  used  in  favor  of  this 
type  of  cell  building.  They  are  said  to  be  cheaper  to  build, 
partly  because  the  plumbing  arrangements  are  simpler.  They 
are  safer  because  the  prisoners  can  be  watched  by  the  guards 
from  the  front  of  the  cells,  and  also  from  the  rear  through  peep- 
holes which  look  into  the  cells  from  a  narrow  passage  way 
which  runs  between  the  two  rows  of  cells.  The  cells  are  more 
private  in  so  far  as  the  prisoners  cannot  look  into  each  other's 
cells.  But,  on  the  other  hand,  the  cell  doors  must  necessarily 
be  made  of  bars  in  order  to  admit  light  and  air  from  the  corri- 
dors. Consequently,  there  is  no  privacy  from  persons  passing 
through  the  corridors. 

In  the  other  type  of  cell  building  the  cells  are  just  inside  the 
outer  walls  of  the  building.  They  are  lighter  and  airier  than  in 
the  first  type  of  cell  building.  Furthermore,  through  the  cell 
windows  the  inmates  can  secure  glimpses  of  the  outer  world. 
The  cells  can  be  made  private  by  means  of  solid  doors  with 
peep-holes  through  which  the  guards  can  watch  the  inmates. 
If  the  cell  windows  are  protected  with  strong  bars  and  are 
frequently  inspected,  there  is  little  danger  of  escape. 

The  cell  building  with  the  inside  corridor  seems  on  the  whole 
to  be  most  desirable  for  the  welfare  of  the  inmates.  The  cells 
should  be  constructed  of  concrete  or  other  material  which  can 
be  kept  clean  and  free  from  disease  germs.  Each  cell  should 
be  large  enough  to  provide  plenty  of  cubic  feet  of  air  for  at 
least  one  inmate.  Each  cell  should  contain  a  comfortable  bed, 
a  chair,  a  good  light,  a  toilet,  and  running  water.  As  far  as 
possible  there  should  be  only  one  inmate  in  each  cell. 

The  cottage  system  in  the  placa  of  the  cell  blocks  is  now  being 


424  CRIMINOLOGY 

advocated  by  some  prison  reformers.  This  system  is  more 
homelike  and  therefore  pleasanter  in  some  ways  for  the  prison- 
ers. But  the  cell  blocks  are  usually  more  economical,  especially 
where  a  large  number  of  inmates  must  be  housed.  The  cell 
system  is  not  seriously  objectionable  if  the  inmates  are  not 
forced  to  spend  much  of  their  time  in  their  cells.  If  the  cells  are 
sanitary  and  comfortable,  they  serve  very  well  as  small  bed- 
rooms. They  may  also  be  used  in  the  evening  for  a  short  period 
of  quiet  reading  and  meditation  before  bedtime.  The  modern 
prison  cell  is  no  worse  than  a  monastic  cell,  or  the  hall  bedroom 
in  which  many  a  poor  person  has  to  live. 

It  is,  however,  highly  desirable  that  the  huge  cell  blocks  con- 
taining a  thousand  or  more  cells  should  no  longer  be  built. 
Instead  there  should  be  constructed  small  cell  blocks  containing 
from  fifty  to  one  hundred  and  fifty  or  two  hundred  cells.  These 
small  cell  blocks  facilitate  the  classification  of  the  prisoners  into 
homogeneous  groups.  By  permitting  association  in  the  corridors 
each  building  can  become  in  a  measure  a  social  unit.  The 
buildings  can  be  graded  according  to  their  desirability  as  places 
of  residence,  and  the  privilege  of  living  in  the  more  desirable 
buildings  can  be  used  as  a  valuable  incentive  to  good  behavior. 
Furthermore,  the  small  cell  buildings  render  it  more  feasible  to 
make  changes  in  the  administration  of  prisons.  Inasmuch  as 
prison  administration  will  doubtless  modify  greatly  during  the 
next  few  decades,  this  is  an  important  consideration.  In  course 
of  time  the  small  cell  blocks  may  develop  into  the  cottage  sys- 
tem.^ 

Solitary  and  Social  Prison  Life 

The  ideal  of  prison  administration  should  be  to  provide,  as 
far  as  prison  conditions  will  permit,  a  normal  social  life  for  the 
prisoners.  Inasmuch  as  most  of  the  prisoners  will  return  even- 
tually to  life  in  society,  an  unsocial  or  anti-social  life  in  prison 
is  not  likely  to  fit  them  for  life  in  society. 

In  a  prison  the  personality  of  the  prisoner  should  be  devel- 
oped with  a  view  to  making  him  a  useful  member  of  society. 

^  The  prison  cell  and  cellular  confinement  have  been  discussed  in  num- 
erous penological  works.  See,  for  example  C.  R.  Henderson,  The  Cell:  A 
problem  of  prison  science,  in  the  Jour.  Crim.  Law,  Vol.  11,  No.  i,  May,  1911, 
pp.  56-67;  71st  An.  Rep.  Prison  Asi'n  of  N.  Y.  [igij],  Albany,  1916. 


THE  PRISON   SYSTEM  425 

The  suppression  of  individuality  by  unnecessary  uniformity 
should  not  be  tolerated.  While  discipline  is  an  essential  feature 
of  prison  life,  an  artificial  uniformity  is  not  usually  the  best  form 
of  discipline.  Shackles,  the  lockstep,  a  distinctive  prison  uniform 
such  as  stripes,  the  compulsory  cropping  of  the  hair  and  shave, 
etc.,  should  be  abohshed.  Some  of  these  disciplinary  measures, 
such  as  the  lockstep,  hamper  the  ex-convict  in  his  after-life  in 
society  at  large.  In  the  place  of  these  harmful  forms  of  discipline 
should  be  substituted  gymnasium  and  military  drill,  enforced 
cleanliness  and  neatness,  regular  habits  of  eating  and  sleeping, 
temperance,  and  habits  of  industry. 

In  order  that  the  prison  shall  be  administered  eflficiently  the 
superintendents,  instructors,  and  guards  should  be  trained  for 
their  important  duties,  and  should  be  adequately  remunerated. 
The  fee  system  should  be  abolished.  Under  this  system  those 
who  profit  from  the  fees  are  mainly  interested  in  keeping  as 
many  as  possible  in  prison,  and  are  not  interested  in  preparing 
the  inmates  to  leave  prison. 

As  I  have  already  stated,  there  have  been  great  differences 
in  prisons  as  to  the  degree  of  association  permitted  among  the 
inmates.  In  many  of  the  European  prisons  and  in  some  of  the 
American  prisons  the  attempt  has  been  made  to  isolate  the 
prisoners  entirely  from  each  other.  In  these  prisons  practically 
all  of  the  time  of  the  prisoner  is  spent  in  his  own  cell,  and  he  is 
not  permitted  even  to  see  his  fellow-prisoners.  The  only  social 
life  allowed  him  is  a  very  small  amount  of  social  intercourse  with 
the  prison  officials  and  visitors. 

It  has  been  alleged  in  behalf  of  solitary  confinement  that  the 
prolonged  meditation  caused  by  it  induces  a  state  of  remorse, 
contrition,  and  repentance  for  the  evil  committed  by  the  pris- 
oner. Consequently,  he  resolves  to  follow  a  virtuous  life  after 
leaving  prison.  Furthermore,  it  saves  the  prisoner  from  asso- 
ciation with  criminals  who  are  worse  than  himself,  and  who  will 
consequently  contaminate  and  corrupt  him  beyond  the  point 
he  has  already  reached.  By  shielding  his  features  from  his 
fellow-inmates  he  will  be  saved  from  recognition  by  other 
criminals  after  he  leaves  prison. 

It  is,  however,  almost  certain  that  remorse  and  repentance 
are  not  the  usual  results  of  solitary  confinement.  This  may 
happen  to  a  few  of  the  criminals  by  passion  and  of  the  occasional 


426  CRIMINOLOGY 

criminals.  But  it  is  doubtful  if  it  can  ever  happen  to  the  feeble- 
minded and  psychopathic  criminals,  and  rarely  to  the  profes- 
sional criminals.  On  the  contrary,  solitary  confinement  is 
much  more  likely  to  lead  to  brooding  over  fancied  wrongs  and 
the  hardness  of  fate.  This  brooding  is  almost  certain  to  inten- 
sify the  hostility  and  bitterness  of  the  criminal  towards  society, 
and  thus  to  make  him  much  more  dangerous  to  society  after 
he  leaves  prison.  If  the  solitary  confinement  is  prolonged  for 
many  years,  it  is  almost  certain  to  give  rise  to  a  prison  psychosis 
which  is  likely  to  develop  into  insanity.  This  fact  has  been 
recognized  even  by  many  of  those  who  advocate  solitary  con- 
finement, and  has  led  them  to  consider  it  desirable  to  place  a 
limit  to  the  length  of  solitary  confinement,  as,  for  example, 
ten  or  fifteen  years. 

The  inmates  can  be  saved  from  corruption  within  the  prison 
to  a  large  extent  if  they  are  properly  classified.  If  the  inex- 
perienced criminals  are  not  permitted  to  mingle  with  the  hard- 
ened criminals,  the  danger  from  this  source  will  be  reduced  to  a 
minimum.  But  even  granting  that  at  least  a  small  amount  of 
corruption  will  result  from  association  within  the  prison,  soli- 
tary confinement  for  all  the  prisoners  is  too  great  a  price  to  pay 
for  the  prevention  of  this  corruption.  The  prisoners  will  gain 
more  in  the  long  run  from  a  classified  system  of  association. 

It  is  obvious  that  the  ideal  of  the  normal  social  life,  as  far  as 
prison  conditions  will  permit,  mentioned  above,  cannot  possibly 
be  attained  unless  a  large  measure  of  association  is  permitted 
within  the  prison.  This  ideal  is  not  attained  when  the  prisoners 
merely  eat  together  in  the  same  dining  room,  and  work  together 
in  the  workshops,  but  are  not  permitted  to  talk  together  or 
have  any  lawful  intercourse,  as  is  the  case  in  many  prisons.  It 
goes  without  saying  that  speech  is  an  essential  feature  of  normal 
social  life.  The  inmates  should,  as  a  general  rule,  be  permitted 
to  converse  during  their  meals,  and  perhaps  sometimes  at  their 
work.  Furthermore,  they  should  be  given  periods  of  recreation 
during  which  they  can  mingle  and  converse  freely  with  the 
members  of  the  class  in  the  prison  to  which  they  have  been  as- 
signed. By  this  means  they  can  maintain  relations  of  friend- 
ship if  not  of  intimacy  with  some  of  their  fellow-inmates  during 
their  incarceration.  There  are  few  if  any  human  beings  who 
can  fail  to  become  more  unsocial,  and  usually  more  anti-social, 


THE   PRISON   SYSTEM  427 

if  they  are  cut  off  from  such  human  relationships  for  any  great 
length  of  time. 

Prison  Labor 

One  of  the  most  serious  problems  of  prison  administration  is 
convict  labor.  In  many  prisons  in  the  past  labor  was  not  pro- 
vided for  the  inmates,  except  possibly  when  unremunerative  and 
unproductive  labor,  such  as  the  treadmill,  was  imposed  as  a 
form  of  discipline.  Idleness  in  prison  is  even  more  harmful 
than  it  is  elsewhere,  and  frequently  becomes  a  burden  to  the 
inmates  themselves.  So  that  penal  servitude  has  been  intro- 
duced into  most  of  the  prisons  to  which  criminals  are  sentenced 
for  long  terms,  and  some  of  the  short  term  prisons  as  well.  But 
there  are  many  defects  in  the  system  of  prison  labor  which  must 
be  corrected. 

It  is  essential,  first  of  all,  to  state  clearly  and  precisely  the 
purposes  of  prison  labor.  In  the  first  place,  it  should  pay  in  large 
part  if  not  entirely  the  cost  of  maintaining  the  prisons.  In  the 
second  place,  it  should  be  organized  and  administered  in  such  a 
fashion  as  to  furnish  the  prisoners  an  industrial  training  which 
will  aid  in  making  them  useful  and  productive  members  of 
society  after  they  leave  prison.  In  the  third  place,  it  should 
contribute  as  far  as  possible  towards  the  self-support  of  the 
prisoners. 

When  the  prisoners  have  not  been  forced  to  work,  the  whole 
expense  of  maintaining  the  prisons  has  fallen  upon  the  public. 
Most  if  not  all  of  this  expense  can  be  obviated  by  using  the 
labor  supply  available  in  the  prisons.  In  the  first  place,-  the 
inmates  can  do  most  of  the  work  of  caring  for  the  prison  itself. 
Sometimes  they  are  able  even  to  take  part  in  constructing  the 
prison.  The  remainder  of  the  labor  supply  can  be  used  to  pro- 
duce goods  which  have  value  outside  of  the  prison.  These 
goods  can  be  profitably  disposed  of  in  two  ways.  They  can 
be  put  on  the  market  and  sold.  There  has  been  a  good  deal  of 
objection  to  this  method  because  there  is  a  tendency  for  the 
government  to  undersell  the  same  goods  produced  by  private 
manufacturers,  and  thus  to  give  rise  to  unfair  competition 
against  the  manufacturers  and  the  free  labor  outside  of  the 
prisons.  Or  these  goods  can  be  made  to  be  used  by  the  other 
branches  and  departments  of  the  government.    This  is  the  so- 


428  CRIMINOLOGY 

called  "state  use"  system  which  is  being  more  and  more  widely 
adopted.  By  this  method  the  prison  system  can  help  to  support 
the  government  without  giving  rise  to  unfair  competition  in 
the  open  market. 

The  prison  industries  should  be  somewhat  varied  in  order 
to  utilize  the  different  kinds  of  skill  possessed  by  the  inmates, 
and  also  in  order  to  furnish  several  forms  of  industrial  training 
for  the  inmates  who  are  ignorant  of  a  trade.  They  should  be 
supervized  by  persons  who  are  competent  to  instruct,  so  that 
the  prison  labor  system  will  be  educational  as  well  as  financially 
profitable.  As  far  as  possible  there  should  be  included  the  dif- 
ferent kinds  of  trades  best  suited  to  the  types  of  physical  and 
mental  ability  represented  in  the  population  of  the  prison. 
There  should  be  out-of-door  work,  such  as  farming  and  con- 
struction work,  for  the  physically  strong  and  robust,  and  indoor 
work,  such  as  tailoring,  cabinet-making,  etc.,  for  those  who  are 
better  fitted  for  indoor  work.  Furthermore,  the  kinds  of  work 
provided  in  each  institution  should  be  determined  largely  ac- 
cording to  the  types  of  criminals  for  which  the  prison  is  special- 
ized. Thus  the  trades  in  a  reformatory  for  young  offenders 
would  differ  somewhat  from  those  in  a  prison  for  adults,  the 
industries  in  a  penal  institution  for  the  feebleminded  would 
differ  somewhat  from  those  in  a  penal  institution  for  the  insane. 

A  careful  record  should  be  kept  of  the  cost  of  maintenance  of 
each  inmate  of  a  prison.  Then  the  inmate  should  be  encouraged 
to  become  self-supporting  within  the  prison  as  far  as  possible 
by  producing  enough  to  cover  the  cost  of  his  maintenance. 
The  interest  of  the  prisoner  in  his  work  can  usually  be  aroused 
by  offering  to  pay  him  all  or  at  least  a  part  of  what  he  produces 
over  and  above  what  it  costs  to  support  him.  It  may  even  be 
well  to  itemize  the  account  of  expenditure  for  his  support,  and 
require  him  to  pay  with  the  fruits  of  his  own  labor  for  his  food, 
clothing,  lodging,  etc.,  except  when  disabled  from  doing  so,  in 
which  case  the  state  would  support  him  as  it  cares  for  other 
dependents.  By  this  means  the  interest  of  the  prisoner  is 
aroused  in  the  problem  of  his  own  maintenance,  and  his  self 
respect  is  encouraged  by  the  feeling  that  he  is  not  financially 
dependent  upon  others  and  is  not  being  pauperized.  In  most 
cases  he  will  endeavor  to  make  more  than  it  costs  to  maintain 
him  in  the  prison.    He  may  be  permitted  to  spend  a  limited 


THE  PRISON   SYSTEM  429 

portion  of  the  surplus  of  his  wages  over  his  cost  of  maintenance 
while  in  prison.  But  if  he  has  a  family,  it  should  be  devoted 
to  the  support  of  his  family.  Otherwise  most  of  it  should  be 
saved  up  to  be  used  by  him  after  he  leaves  prison. 

A  few  attempts  to  introduce  a  system  of  wage  labor  into  the 
prison  system  have  been  made.^  But  in  most  places  prison 
'labor  is  still  regarded  merely  as  a  form  of  penal  servitude.  The 
state  doubtless  has  the  right  to  impose  labor  as  a  form  of  punish- 
ment, and  such  labor  has  a  certain  amount  of  punitive  value. 
This  labor  would,  however,  have  much  greater  psychological 
and  moral  value  if  it  was  directed  at  least  in  part  towards  re- 
paying, whenever  possible,  the  victim  of  the  crime  for  the  injury 
he  has  sustained.  I  shall  describe  punitive  reparation  in  the 
following  chapter,  and  shall  then  show  that  the  principle  of  rep- 
aration should  be  combined  with  the  principle  of  compensation 
for  the  prisoner. 

Evils  of  Contract  Labor 

But  while  penal  servitude  to  the  state  is  justifiable,  there  can 
be  no  justification  for  penal  servitude  to  individuals.  It  has 
nevertheless  been  customary  for  the  state  to  sell  the  labor  of 
convicts  to  private  employers.  During  the  Colonial  days  many 
convicts  were  sent  here  from  England,  and  their  labor  was  sold 
to  the  colonists  for  the  period  of  their  sentences.  It  is  still  pos- 
sible in  several  of  the  Southern  states  to  sell  the  labor  of  the 
convicts  outside  of  the  prisons.^  This  has  resulted  in  the  brutal 
"peonage"  system  in  these  states  in  which  the  convicts  have 
been  almost  literally  sold  body  and  soul  to  the  purchasers  of 
their  labor. 

It  is  obviously  dangerous  to  put  helpless  convicts  who  have 
little  or  no  legal  redress  into  the  hands  of  private  employers. 
In  the  Southern  peonage  camps  the  convicts  are  fed  and  housed 

^  Some  of  these  attempts  are  described  by  W.  N.  Gemmill,  Employment 
and  Compensation  of  Prisoners,  in  the  Jour.  Crim.  Law,  Vol.  VI,  No.  4, 
November,  1915,  pp.  507-518. 

^  According  to  Whitin  in  1Q13,  prisoners  could  be  leased  for  work  outside 
of  the  prisons  in  Alabama,  Arkansas,  Florida,  Louisiana,  North  Carolina, 
South  Carolina,  and  Tennessee.  (E.  S.  Whitin,  The  Caged  Man,  in  the 
Proceedings  of  the  Academy  of  Political  Science  in  the  City  of  New  Y<M-k, 
Vol.  Ill,  No.  4,  July,  1913,  pp.  24-25.) 


430  CRIMINOLOGY 

by  the  employers,  and  are  almost  entirely  in  the  power  of  the 
employers  during  the  period  they  are  leased  to  them.  This 
situation  is  a  strong  temptation  to  the  selfishness  and  cupidity 
of  the  employers.  They  are  very  likely  to  spend  as  little  as  pos- 
sible in  caring  for  the  convict  laborers,  and  to  procure  as  much 
labor  as  possible  out  of  them.  Furthermore,  the  desire  to  secure 
cheap  labor  will  impel  them  to  use  every  possible  means,  some- 
times illegal  as'  well  as  legal,  to  induce  the  officers  of  the  law 
(sheriffs,  judges,  etc.)  to  arrest  and  convict  numerous  vagrants 
and  other  defenseless  persons  for  alleged  offenses.  In  this 
fashion  the  contractors  recruit  their  chain  gangs  for  road  work, 
the  lumber  camps,  etc. 

But  there  are  serious  objections  against  leasing  convict  labor 
within  the  prisons  as  well.  It  is  true  that  under  these  condi- 
tions the  prisoners  are  not  at  the  mercy  of  the  contractors  to 
the  same  extent  as  in  the  peonage  camps.  But  it  is  impossible 
under  a  contract  labor  system  to  attain  the  objects  of  prison 
labor  which  have  been  described.  It  is  impossible  to  interest 
the  prisoners  in  their  work  when  they  know  that  they  are  being 
exploited  by  private  contractors,  whereas  this  interest  may  be 
aroused  when  they  are  working  solely  for  the  state  and  for  them- 
selves. It  is  impossible  to  train  the  prisoners  as  effectively  under 
contract  labor  as  under  the  state  system.  It  is  difficult  to  devize 
a  satisfactory  system  of  compensation  for  the  prisoners  under 
contract  labor.  The  supervision  over  the  workshops  by  the 
contractors  is  likely  to  be  a  disturbing  factor  in  the  prison  ad- 
ministration, and  to  interfere  with  a  harmonious  organization  of 
the  prison  life  in  accordance  with  scientific  principles. 

Furthermore,  contract  labor  has  been  a  prolific  cause  of 
poHtical  corruption  in  this  country.  Prison  labor  is  a  cheap  and 
therefore  highly  profitable  form  of  labor  for  the  employers. 
Consequently,  the  granting  of  the  prison  contracts  has  resulted 
in  much  bribery  of  the  government  officials  and  of  the  politicians. 
These  contracts  have  constituted  an  important  part  of  the 
"graft"  of  our  political  system.^ 

Contract  labor  has  also  given  rise  to  much  friction  with  the 
labor  organizations.  The  products  of  the  prison  contract  labor 
have  usually  been  put  on  the  market  at  reduced  prices,  and  have 

'  For  a  description  of  contract  labor  in  this  country  see,  E.  S.  Whitin, 
Penal  Servitude,  New  York,  191 2. 


THE  PRISON  SYSTEM  43 1 

competed  with  the  products  of  the  free  labor.  Consequently, 
free  labor  has  been  put  at  an  unfair  disadvantage  with  the  cheap 
prison  labor.  Consequently,  the  labor  unions  have  naturally 
and  justifiably  opposed  contract  labor,  and  have  constituted  a 
powerful  factor  for  the  state  use  system. 

In  spite  of  these  serious  objections  contract  labor  still  exists 
in  many  states,  and  is  recognized  and  permitted  by  their  con- 
stitutions and  laws.  ^  And  yet  there  is  some  reason  for  believing 
that  contract  labor  is  prohibited  by  the  Constitution  of  the 
United  States.  The  Thirteenth  Amendment,  ratified  by  the 
states  in  1865,  reads  as  follows:  "Neither  slavery  nor  involuntary 
servitude,  except  as  a  punishment  for  crime  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction."  The  Su- 
preme Court  of  the  United  States  has  defined  the  meaning  of 
the  word  slavery  as  it  is  used  in  this  amendment  as  follows: 
"Slavery  implies  involuntary  servitude  —  a  state  of  bondage; 
the  ownership  of  mankind  as  a  chattel,  or  at  least  the  control 
of  the  labor  and  services  of  one  man  for  the  benefit  of  another, 
and  the  absence  of  a  legal  right  to  the  disposal  of  his  own  person, 
property  and  services."    (Plessy  v.  Ferguson,  163  U.  S.  537.) 

It  is  evident  that  the  Constitution  expressly  permits  penal 
servitude  as  a  form  of  punishment.  But  it  is  also  evident  that, 
according  to  the  opinion  of  the  Supreme  Court  which  has  been 
cited,  contract  labor  is  expressly  prohibited,  because  it  involves 
"  the  control  of  the  labor  and  services  of  one  man  for  the  benefit 
of  another."  This  constitutional  question  was  tested  recently 
in  a  case  which  was  brought  before  the  Supreme  Court  of  the 
State  of  Rhode  Island.  Unfortunately  the  court  decided  that 
contract  labor  is  constitutional,  but  without  giving  any  reason 
for  its  decision.^    It  is  to  be  hoped  that  this  question  will  be 

^  According  to  Whitin,  in  1913  the  state  laws  permitted  convict  contract 
labor  in  the  following  states:  Alabama,  Arkansas,  Colorado,  Connecticut, 
Florida,  Idaho,  Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana,  Maine, 
Maryland,  Massachusetts,  Minnesota,  Nebraska,  Nevada,  New  Hamp- 
shire, North  Carolina,  Oregon,  Rhode  Island,  South  Carolina,  South 
Dakota,  Tennessee,  Vermont,  Virginia,  West  Virginia,  Wisconsin.  {The 
Caged  Man,  pp.  24-8.) 

*  William  Anderson  v.  Crescent  Garment  Co.  This  case  was  instituted  a 
few  years  ago  by  the  National  Committee  on  Prisons  and  Prison  Labor. 
The  State  of  Rhode  Island  had  hired  the  labor  of  some  of  its  prisoners  to 


432  CRIMINOLOGY 

decided  before  long  by  the  Supreme  Court  of  the  United  States. 
If  the  Federal  Supreme  Court  fails  to  declare  contract  labor  un- 
constitutional, it  should  be  prohibited  by  state  and  federal 
legislation. 

Educational,  Religious,  and  Recreational  Facilities 

In  all  prisons  where  the  inmates  are  not  incorrigible  there 
should  be  educational  facilities  for  those  who  need  them.  This 
is  especially  important  in  the  reformatories  for  the  young  delin- 
quents. But  it  is  important  also  for  the  older  criminals  whose 
education  is  very  deficient.  There  should  also  be  a  library  in 
every  prison,  and  good  current  periodical  literature  should  be 
circulated  among  the  prisoners.  These  educational  measures 
will  materially  aid  some  of  the  offenders,  and  especially  the 
younger  ones,  to  make  their  way  in  the  world  without  falling 
into  crime  again  after  leaving  prison,  while  they  are  not  likely 
to  help  the  professional  criminals  to  become  more  eflScient  as 
criminals. 

The  opportunity  to  attend  religious  services  should  be  fur- 
nished to  the  inmates  of  every  prison.  Religious  worship  fur- 
nishes consolation  to  many  persons,  and  religion,  largely  through 
its  appeal  to  the  emotion  of  fear  on  account  of  its  minatory 
features,  acts  as  a  wholesome  check  upon  some  individuals. 
But  attendance  at  religious  ceremonies  should  be  optional,  and 
no  inmate  should  be  forced  to  be  present  at  such  ceremonies 
against  his  will,  because  this  would  be  a  gross  violation  of  the 
principle  of  religious  freedom,  which  should  be  observed  in 
prisons  as  much  as  elsewhere. 

Nor  is  it  to  be  expected,  as  many  religionists  erroneously 
assume,  that  religion  can  serve  as  a  panacea  for  criminality, 
even  in  the  case  of  the  individual  who  is  receptive  to  its  emotional 
appeal  and  is  amenable  to  its  teachings.  The  religious  devotee  of 
weak  character  is  in  need  of  moral  discipline  as  much  as  others 
who  are  not  religious.  Indeed,  religious  exaltation  will  some- 
times unduly  emphasize  the  emotional  nature  in  such  a  fashion 
as  to  increase  weakness  of  character. 

Recreational  facilities  should  be  provided  in  every  prison. 

prison  contractors,  and  an  ex-prisoner  brought  suit  against  the  contractors 
for  wages  for  his  labor  while  he  was  working  for  them  in  prison. 


THE   PRISON   SYSTEM  433 

• 

However  heinous  the  crime  of  a  criminal,  and  however  incor- 
rigible he  may  be,  it  is  impossible  to  deprive  a  human  being  of 
every  form  of  recreation  and  at  the  same  time  prevent  him  from 
becoming  more  abnormal  physically  and  mentally.  So  that 
healthy  and  wholesome  means  of  recreation  should  be  provided, 
such  as  outdoor  sports  and  indoor  games,  entertaining  reading, 
dramatic  spectacles,  etc.  As  many  as  possible  of  these  forms  of 
recreation  should  be  social  in  their  character.  These  recreational 
facilities  have  great  prophylactic  value.  They  aid  materially 
in  solving  the  serious  problems  of  discipline  which  arise  in  every 
penal  institution. 

Prison  Discipline 

Imprisonment  is  in  itself  a  form  of  punishment.  But  it  is 
necessary  also  to  devize  a  system  of  prison  penalties  to  be  in- 
flicted upon  those  who  commit  offenses  within  the  prison.  Some 
of  these  offenses  are  against  the  penal  code,  such  as  murder  and 
assault,  for  which  the  prisoner  must  be  tried  in  a  criminal  court 
and  condemned  to  an  additional  penalty.  But  most  of  them  are 
offenses  against  the  prison  administration.  Inasmuch  as  a 
prison  is  a  community  by  itself,  it  must  have  its  own  system 
of  government,  and  infractions  of  its  rules  and  regulations  create 
difficult  problems  of  discipline.  This  is  all  the  more  true  be- 
cause the  prison  population  is  by  its  very  nature  less  amenable 
to  discipline  than  the  population  at  large,  and  therefore  more 
prone  to  violate  the  prison  rules. 

The  first  step  in  developing  a  system  of  prison  discipline  is  to 
ascertain  the  causes  of  the  misconduct  of  the  inmates.  Hereto- 
fore prison  administrators  have  been  prone  to  assume  that  mis- 
conduct on  the  part  of  the  inmates  was  due  to  their  natural 
"  cussedness,"  and  have  therefore  usually  failed  to  discriminate 
in  inflicting  penalties.  But  our  study  of  the  causes  of  criminality 
outside  of  the  prisons  has  shown  that  these  causes  are  multiple 
and  complex,  and  the  causes  of  misconduct  within  the  prison  are 
almost  as  varied.  This  fact  indicates  still  more  emphatically 
the  need  for  a  scientific  management  of  all  penal  institutions. 
A  considerable  part  of  the  discipline  of  a  prison  should  be  di- 
rected from  the  medical  and  psychiatric  laboratories,  and  not 
from  the  warden's  office. 


434  CRIMINOLOGY 

The  preliminary  classification  of  the  criminals  will  reveal 
many  important  facts  about  their  misconduct  in  prison.  For 
example,  the  misdeeds  of  a  paranoiac  criminal  are  likely  to  be 
due  to  his  insane  delusions  of  persecution  or  of  grandeur.  But 
there  are  important  dififerences  between  the  members  of  the 
same  class,  and  these  individual  idiosyncracies  should  be  ob- 
served and  noted  by  competent  administrators  who  will  be 
guided  by  this  information  in  prescribing  disciplinary  measures. 

Let  us  consider,  for  example,  such  a  prison  offense  as  maUnger- 
ing.  The  ordinary  prison  administrator  usually  assumes  that 
all  cases  of  malingering  are  due  to  the  same  fault,  namely,  lazi- 
ness. But  medical  and  psychiatric  investigation  has  revealed 
the  fact  that  malingering  is  due  to  different  causes  in  different 
types  and  in  different  individuals.^  Thus  the  malingerer  may 
feign  illness  in  order  to  secure  drugs  which  gratify  an  abnormal 
appetite,  or  because  he  is  a  hypochondriac,  or  he  may  mutilate 
himself  in  order  to  arouse  sympathy.^  It  goes  without  saying 
that  these  causes  should  be  recognized  and  considered  in  decid- 
ing how  each  case  of  malingering  is  to  be  treated. 

A  scientific  basis  for  prison  .discipline  is  all  the  more  neces- 
sary because  extensive  powers  must  inevitably  be  placed  in  the 
hands  of  prison  administrators  and  guards.  It  goes  without 
saying  that  this  discipline  must  be  strict  and  the  government  of 
a  prison  must  be^  repressive,  because  criminals  are  dangerous 
persons  who  have  proved  themselves  to  be  enemies  of  society. 
Consequently,  it  is  incumbent  upon  the  officials  in  whose  custody 
criminals  are  placed  to  protect  society  against  them,  and  to 
execute  the  penalties  which  society  has  imposed  upon  them. 
But  great  danger  is  involved  in  placing  almost  unlimited  power 
in  the  hands  of  human  beings  over  other  human  beings,  how- 
ever much  in  the  wrong  these  persons  have  been  in  their  past 
conduct. 

Consequently,  prisoners  should  always  possess  the  right  to 

^  Dr.  Lydston,  who  has  been  a  prison  physician,  expresses  the  following 
opinion  of  malingerers:  —  "My  experience  leads  me  to  believe  that  the  ma- 
lingering of  convicts  is  in  itself  a  manifestation  of  incapacity  —  of  a  lack  of 
physical  and  moral  fiber."  (G.  Frank  Lydston,  Malingering  among  Crim- 
inals, in  the  Jour.  Crim.  Law,  Vol.  IF,  No.  3,  Sept.,  191 1,  p.  388.) 

*  The  causes  and  forms  of  malingering,  though  not  in  relation  to  prison 
life,  are  described  at  length  in  the  following  work:  —  John  Collie,  Malingering 
and  Feigned  Sickness,  London,  1913. 


THE   PRISON   SYSTEM  435 

appeal  from  the  treatment  of  prison  officials  to  a  superior  au- 
thority, such  as  a  court,  or  a  prison  board  having  supervision 
over  the  penal  institutions  of  a  city,  state,  or  nation.  But  a 
more  effective  check  in  the  long  run  over  the  abuse  of  power  by 
prison  officials  is  scientific  knowledge  on  the  part  of  these 
officials.  When  they  possess  insight  into  the  causes  of  the 
misdeeds  of  their  wards,  they  are  much  less  likely  to  be  governed 
by  unilateral  theories  of  the  inherent  wickedness  of  criminals 
in  general,  or  to  be  inspired  by  feelings  of  personal  vengeance  in 
applying  disciplinary  measures. 

During  the  first  half  of  the  nineteenth  century  was  developed 
•the  marking  or  grading  system.^  According  to  this  system  a 
prisoner  earns  good  marks  for  good  behavior  and  industry, 
and  is  given  demerits  for  misbehavior.  His  marks  and  demerits 
then  determine  the  privileges  accorded  to  him,  and,  where  there 
is  an  indefinite  sentence,  may  also  determine  the  time  of  his 
discharge.  This  system  is  now  used  in  many  penal  institutions. 
The  prisoners  are  sometimes  graded  according  to  their  standing 
in  the  marking  system.  This  system  appeals  to  the  self  interest 
of  the  prisoners  and  induces  many  of  them  to  behave  themselves 
while  in  prison.  But  this  does  not  necessarily  indicate  reforma- 
tion on  the  part  of  a  criminal,  because  a  dangerous  criminal 
may  be  shrewd  enough  to  behave  himself  while  in  prison  to  gain 
privileges  thereby,  but  will  commit  quite  as  heinous  crimes 
after  leaving  prison.  On  the  other  hand,  an  occasional  criminal 
or  a  criminal  by  passion  may  find  it  difficult  to  adjust  himself 
to  the  prison  routine,  though  there  is  little  danger  of  his  com- 
mitting criminal  acts  again  after  leaving  prison. 

Self  Government  in  Prisons 

One  of  the  most  promising  features  of  present  day  prison  re- 
form is  the  effort  to  develop  self  government  among  prisoners. 
It  is  possible  to  appeal  to  most  criminals  both  on  altruistic 
and  on  egoistic  grounds  to  assume  some  of  the  responsibility 
for  their  conduct  within  penal  institutions.  The  grading  system 
has  sometimes  been  carried  to  the  point  where  the  more  trust- 

^  This  system  was  developed  by  Captain  Alexander  Maconochie,  superin- 
tendent of  English  prisons  in  Van  Dieman's  Land  (Tasmania),  and  Sir 
Walter  Crofton,  director  of  Irish  prisons. 


436  CRIMINOLOGY 

worthy  prisoners  have  been  placed  upon  their  honor  and  have 
been  trusted  with  certain  privileges.  The  principle  of  self- 
government  carries  the  honor  system  further,  and  organizes 
all  the  prisoners  or  a  part  of  them  into  a  social  unit  which  is 
held  responsible  for  the  conduct  of  its  members.  Thus  the  re- 
sponsibility of  a  prisoner  becomes  in  part  social  as  well  as  indi- 
vidual. By  violating  the  regulations  of  the  institution  he  endan- 
gers not  only  his  own  privileges,  but  also  those  of  his  fellows. 
In  this  fashion  the  social  and  altruistic  traits  of  the  criminal 
are  encouraged  to  develop. 

It  goes  without  saying  that  complete  self  government  can 
never  be  attained  in  a  penal  institution.  The  ultimate  seat  of 
authority  must  always  remain  in  the  hands  of  the  prison  ad- 
ministration. The  amount  of  self  government  which  can  safely 
and  profitably  be  granted  must  depend  upon  the  nature  of  the 
inmates  of  an  instiution.  In  an  asylum  for  insane  or  feeble- 
minded criminals  it  may  be  possible  to  grant  little  or  no  self 
government.  In  a  reform  school  for  very  young  delinquents 
comparatively  little  self  government  may  be  possible.  But  in  a 
prison  for  adult  criminals,  many  of  whom  are  occasional  crimi- 
nals and  few  of  whom  are  incorrigible,  it  is  feasible  to  in- 
troduce a  considerable  measure  of  self  government.  In  such  a 
prison  the  inmates  may  be  permitted  to  elect  a  council  of  their 
own  which  is  given  the  power  to  legislate  with  respect  to  certain 
matters,  and  to  try  and  punish  the  inmates  for  certain  offenses.^ 

Self  government  almost  invariably  decreases  greatly  the 
number  of  infractions  of  the  prison  rules,  for  the  inmates  are 
afraid  of  losing  their  cherished  privileges.  So  that  it  solves 
many  of  the  difficult  problems  of  discipline  for  the  prison  ad- 
ministrators. Furthermore,  it  furnishes  the  prisoners  an  ad- 
mirable training  in  self  control  and  social  responsibility,  and 
prepares  them  for  their  later  life  in  society  at  large.  At  the  same 
time  the  prisoners  must  never  be  permitted  to  forget  the  strong 
hand  of  the  prison  administration,  for  otherwise  attempts  to 
escape  will  become  frequent,  while  a  lax  administration  may  lead 
eventually  to  a  general  uprising  of  the  inmates. 

1  For  descriptions  of  self  government  in  American  prisons  see  the  follow- 
ing books:  —  B.  G.  Lewis,  The  Ofender,  New  York,  1917,  especially  Part  I, 
Chapters  VIII  and  IX;  T.  M.  Osborne,  Society  and  Prisons,  New  Haven, 
19 1 6,  especially  Chapter  IV. 


the  prison  system  437 

Sex  Problems  in  Prisons 

One  of  the  most  difficult  problems  of  prison  administration 
arises  out  of  the  strict  segregation  of  the  sexes  which  is  inevit- 
able in  penal  institutions.  It  is  needless  to  say  that  the  sexual 
instinct  gives  rise  to  a  normal  impulse  for  sexual  intercourse 
which  craves  satisfaction  in  all  adults.  Consequently,  it  is  in- 
evitable that  when  sexually  mature  individuals  are  suddenly 
and  rigidly  cut  ofif  not  only  from  sexual  intercourse,  but  also  from 
association  of  any  sort  with  the  opposite  sex,  mental  and  some- 
times physical  disturbances  as  well  are  certain  to  arise  in  many 
of  these  individuals.  The  result  is  that  onanism  (masturbation), 
homosexuality,  and  other  forms  of  sexual  perversion  are  always 
prevalent  among  both  male  and  female  prisoners.  Furthermore, 
many  other  prison  offenses  are  due  to  the  drastic  repression  of 
sex  in  prison  life.  This  repression  is  likely  to  have  the  gravest 
effect  upon  those  who  have  been  accustomed  to  regular  sexual 
gratification  previous  to  imprisonment. 

Unfortunately  few  prison  administrators  and  reformers  have 
comprehended  the  true  nature  of  this  situation,  and  many  of 
the  most  stupid  errors  and  gravest  brutalities  of  prison  manage- 
ment have  arisen  out  of  this  lack  of  comprehension.^  Most  of 
these  administrators  and  reformers  have  regarded  these  sexual 
abnormalities  as  arising  solely  out  of  the  moral  perversity  of  their 
unhappy  victims,  and  have  subjected  them  to  cruel  repressive 

•  It  is  strange  indeed  that  few  references  are  made  to  this  important 
phase  of  prison  life  in  criminological  literature.  This  is  doubtless  due  in 
part  to  prudishness,  as  well  as  to  a  failure  to  appreciate  its  significance. 
Even  those  who  have  described  their  own  prison  life  have  failed  to  describe 
this  feature  of  prison  life.  This  is  probably  due  in  part  to  prudishness,  but 
also  to  prudential  considerations.  A  notable  exception  is  the  anarchist 
Berkman,  who  spent  fourteen  years  (1892-1906)  in  the  Western  State  Peni- 
tentiary of  Pennsylvania  near  Pittsburgh  for  attempting  to  kill  Henry  C. 
Frick.  This  prison  is  conducted  in  the  main  upon  the  principle  of  solitary 
confinement,  which  is  peculiarly  prone  to  develop  these  sexual  abnormalities. 
According  to  Berkman's  graphic  account  the  administration  of  this  prison 
was  brutal  in  the  extreme.  (Alexander  Berkman,  Prison  Memoirs  of  an 
Anarchist,  New  York,  191 2.) 

Berkman  devotes  three  chapters  of  his  prison  memoirs  to  the  develop- 
ment of  sexual  abnormalities  in  prison,  namely,  Chapter  XV  on  "The  Urge 
of  Sex";  Chapter  XXVIT  on  "Love's  Dungeon  Flower";  and  Chapter  XLIII 
on  "Passing  the  Love  of  Woman."  The  last  is  especially  important,  since 
it  describes  the  evolution  of  homosexuality  in  prison. 


438  CRIMINOLOGY 

measures.  The  first  step  in  dealing  with  this  serious  problem  is 
to  ascertain  the  causes  of  sexual  abnormality  in  each  case  in 
which  it  is  detected.  This  involves,  in  the  first  place,  discovering 
whenever  possible  whether  or  not  the  prisoner  possessed  this 
abnormality  before  entering  the  prison.  In  the  second  place, 
it  is  essential  to  ascertain  the  forces  in  the  prison  life  which  have 
caused  or  have  accentuated  this  abnormality. 

Sexual  abnormality  can  never  be  entirely  prevented  in  prisons, 
because  prison  life  itself  is  highly  abnormal.  Consequently, 
the  only  ultimate  solution  for  this  problem  is  the  abolition  of 
the  prison  system,  which  I  shall  discuss  in  the  following  chap- 
ter. But  a  number  of  prophylactic  measures  can  be  taken  to 
reduce  the  amount  of  sexual  abnormality  as  much  as  possible. 
The  prisoners  should  be  fed  healthful  food  which  will  not  stimu- 
late the  sexual  functions  unduly,  but  not  drugs  which  will 
depress  these  functions,  as  is  done  in  some  prisons.  They  should 
have  plenty  of  opportunity  for  healthy  exercize  in  work  and 
in  play,  so  that  they  will  go  to  bed  each  evening  physically 
tired. 

The  hours  of  recreation  should  be  passed  as  far  as  possible  in 
association  with  each  other,  and  engaged  in  entertaining  and 
profitable  pastimes.  Furthermore,  they  should  be  given  in- 
struction as  to  the  harmful  effects  of  abnormal  sexual  habits. 
But  this  instruction  should  not  be  based  upon  alleged  moral 
principles,  but  upon  biological  and  psychological  facts.  They 
should  be  warned  as  to  the  injury  these  habits  will  do  them  not 
only  in  prison  but  after  they  leave  prison,  in  case  these  habits 
become  firmly  fixed  upon  them. 

It  may  be  desirable  to  segregate  those  who  become  firmly  es- 
tablished in  such  habits,  in  order  that  they  shall  not  be  fur- 
nishing bad  examples  to  the  other  prisoners.  Furthermore, 
any  prisoner  attempting  to  instigate  another  to  acquire  such  a 
habit  should  be  punished.  But  there  should  be  no  penalty  for 
the  sexual  abnormality  itself.  Such  penalties  are  unjust  and 
therefore  brutal,  and  are  almost  certain  to  do  harm  in  the  end. 
On  the  contrary,  each  patient  should  be  given  the  sort  of  psy- 
chiatric and  medical  treatment  which  will  be  most  helpful  to 
him,  in  order  to  aid  him  to  overcome  the  habit  if  possible.  By 
these  measures  only  can  abnormal  sexual  habits  be  reduced  to 
any  appreciable  extent  in  prisons. 


the  prison  system  439 

The  Prison  Psychosis 

The  abnormal  character  of  prison  Hfe  is  prone  to  develop  a 
peculiar  kind  of  psychosis  in  some  of  the  prisoners,  and  this 
psychosis  is  likely  to  develop  into  insanity.  In  a  review  of 
studies  of  prison  insanity  made  in  Germany  two  psychiatrists 
have  described  the  factors  which  give  rise  to  the  prison  psychosis 
in  the  following  words:  —  "The  inmate  of  a  reformatory  who 
spends  most  of  the  day  in  company  with  other  prisoners,  or  in 
the  open,  and  who  as  a  whole  leads  during  his  imprisonment  a 
more  rational  life  than  that  which  his  poor  home  surroundings 
or  his  vagabond  existence  afforded  him,  will  seldom  develop 
a  mental  disorder  as  the  result  of  his  imprisonment.  ...  In 
contrast,  however,  to  the  workhouse  or  reformatory,  the  peni- 
tentiary, with  its  long  term  sentence,  its  solitary  confinement, 
its  hard  labor  and  enforced  mutism,  its  monotonous  occupation 
and  severe  discipline,  its  entire  mode  of  life  favorable  for  the 
development  of  anemia  and  phthisis,  furnishes  greater  oppor- 
tunity for  the  development  of  mental  disorders."  ^ 

These  authors  state  that  the  occasional  criminal  and  the 
criminal  by  passion  apparently  develop  insanity  more  frequently 
than  the  habitual  criminal,  because  it  is  more  difficult  for  them 
to  adapt  themselves  to  prison  life,  and  the  emotional  shock  is 
greater  for  them.  This  explanation  is  doubtless  true  so  far  as 
it  goes.  But  it  should  be  supplemented  by  the  statement  that 
habitual  criminals,  who  should  preferably  be  called  professional 
criminals,  have  passed  through  a  process  of  selection  which  has 
weeded  out  those  who  are  likely  to  become  insane.  In  other 
words,  the  criminals  who  are  predisposed  to  insanity  are  likely 
to  become  insane  while  they  still  are  occasional  criminals,  and 
before  they  have  had  time  enough  to  become  professional  crim- 
inals. 

The  Prison  Type 

The  prisoners  who  develop  the  prison  psychosis  may  be  re- 
garded as  belonging  to  the  "prison  type."  ^    This  is  a  more  or 

^  Paul  Nitsche  and  Karl  Wilmanns,  The  History  of  the  Prison  Psychoses, 
New  York,  1912,  p.  13.  See  also  W.  A.  White,  A  Prison  Psychosis  in  the 
Making,  in  the  Jour.  Crim.  Law,  Vol.  IV,  No.  2,  July,  1913,  pp.  237-246. 

*A  widely  advertized,  popular  prison  reformer  of  the  day,  after  a  silly 


440  CRIMINOLOGY 

less  genuine  psychiatric  entity  which  is  certain  to  be  brought 
into  being  by  any  prison  system.  It  is,  however,  hopeful  to 
note  in  the  above  citation  that  the  factors  emphasized  are  soli- 
tary confinement,  mutism,  monotony,  etc.  As  these  features 
are  eliminated  from  prison  life,  the  prison  psychosis  will  doubt- 
less become  more  and  more  rare. 

It  must  not,  however,  be  thought  that  this  is  the  only  prison 
type.  The  recidivist,  long  inured  to  prison  routine,  may  not 
develop  the  prison  psychosis.  But  he  is  sure  to  acquire  certain 
mental  complexes  which  are  more  or  less  peculiar  to  prison 
life,  and  which  will  always  serve  to  differentiate  him  somewhat 
from  persons  who  have  never  lived  for  long  periods  of  time  in  a 
prison.  We  know  very  little  as  yet  about  the  mental  complexes 
which  are  acquired  in  prison.  When  they  have  been  carefully 
studied  by  psychologists  and  psychiatrists,  they  will  throw  a 
flood  of  light  upon  the  effects  of  prison  life  upon  mind  and  char- 
acter. 

and  senseless  diatribe  against  criminologists,  expresses  the  opinion  that 
"while  there  is  no  such  thing  as  a  criminal  type,  there  is  a  'prison  type.'" 
(T.  M.  Osborne,  Society  and  Prisons,  New  Haven,  1916,  p.  27.)  But  because 
of  his  ignorance  of  the  science  of  criminology,  which  he  contemns,  Mr.  Os- 
borne fails  lamentably  to  give  a  satisfactory  description  of  the  prison  type. 


CHAPTER  XXVII 
A  SCHEME  OF  PENAL  TREATMENT 

Prison  evils  —  Houses  of  detention  —  Local  jails  —  Reception  and  observa- 
tion prisons  —  Types  of  penal  institutions:  reformatories;  colonies; 
asylums;  penitentiaries  —  Release  and  after-care  —  Substitutes  for 
imprisonment  —  Corporal  punishment  —  Restitution  —  Sterilization. 

The  penal  problem  is  fundamentally  a  problem  of  the  manip- 
ulation of  human  character.  Inasmuch  as  the  criminal  has  by 
reason  of  his  anti-social  conduct  forfeited  his  right  to  freedom, 
it  becomes  the  function  of  the  state  to  prescribe  in  almost  every 
detail  the  conditions  of  his  existence.  With  the  exception  of 
the  rearing  of  the  young,  there  could  be  no  better  opportunity 
for  endeavoring  to  develop  human  character  along  useful  social 
lines.  For  this  reason  I  have  insisted  throughout  this  discussion 
upon  the  necessity  of  utilizing  scientific  methods  in  penal  treat- 
ment, and  of  applying  the  principle  of  the  individualization  of 
punishment,  which  requires  a  careful  study  of  each  criminal 
in  order  to  ascertain  his  peculiar  needs. 

Prison  Evils 

Penal  institutions  as  they  now^  exist  in  this  country  and  in 
other  civilized  countries  fall  far  short  of  attaining  the  ideal 
suggested  above.  Many  of  them  are  built  in  such  a  fashion 
as  to  be  insanitary  and  needlessly  uncomfortable  for  their  in- 
mates. The  administration  of  most  of  them  is  either  harsh  and 
brutal,  or,  to  say  the  least,  does  not  lend  itself  readily  to  the 
individualization  of  punishment.  The  contract  labor  system 
vitiates  the  management  of  some  of  them.  It  is  no  wonder 
that  under  these  conditions  many  criminals  are  more  dangerous 
to  society  when  they  leave  prisons  than  when  they  entered 
them.  In  each  of  these  cases  society  has  lost  a  valuable  oppor- 
tunity to  improve  human  character.^ 

'  Prison  conditions  are  described  in  many  writings  of  which  I  will  men- 
tion the  following: — Clarissa  Olds  Keeler,  American  Bastiles,  Washington, 


442  CRIMINOLOGY 

It  goes  without  saying  that  these  evils  should  be  removed. 
Prisons  should  be  well  built,  so  that  they  will  be  sanitary  and 
healthful  and  moderately  comfortable.  Prison  administration 
should  be  humane  and  intelligent,  as  well  as  strict.  The  con- 
tract labor  system  should  be  abolished.  Nor  must  it  be  thought 
that  these  reforms  will  make  prisons  attractive  places  for  crim- 
inals. Even  under  ideal  prison  conditions  imprisonment  con- 
tinues to  be  a  punishment,  for  there  are  very  few  if  any  human 
beings  who  like  to  have  their  lives  regulated  to  the  extent  that 
is  necessary  in  a  prison. 

But  it  is  essential  to  go  further,  and  to  outline  a  system  of 
penal  institutions  which  will  successfully  apply  the  principle  of 
the  individualization  of  punishment.  Some  of  the  features  of 
such  a  penal  system  are  already  foreshadowed  in  the  more 
progressive  penal  institutions  of  today,  but  many  of  them  we 
can  only  predict  and  surmise. 

Houses  of  Detention 

Houses  of  detention,  such  as  police  stations  and  local  jails  in 
so  far  as  they  are  used  for  purposes  of  temporary  detention,  are 
not  penal  institutions.  But  they  are  prisons  in  the  sense  that 
persons  are  temporarily  detained  in  them  in  the  interest  of  so- 
ciety. However,  it  is  essential  to  bear  in  mind  that  many  of 
these  persons  are  not  criminals.  They  are  defendants  in  crim- 
inal cases  who  will  be  acquitted,  and  some  of  them  are  witnesses. 
Consequently,  these  places  should  be  sharply  differentiated 
from  penal  institutions,  and  should  be  known  as  houses  of  deten- 
tion. Each  person  detained  should  be  given  a  small  but  com- 
fortable room  and  not  a  cell.  He  should  not  be  placed  under 
unnecessary  surveillance,  and  should  not  be  forced  to  associate 

1910;  Our  Penal  System  and  Its  Purposes,  published  by  the  Galvestofi-Dallas 
News,  Texas,  1909;  C.  A.  Ellwood,  A  Bulletin  on  the  Condition  of  the  County 
Jails  of  Missouri,  University  of  Missouri,  1904. 

Prison  life  and  conditions  have  been  described  from  within  by  many  in- 
mates and  former  inmates  of  whose  writings  I  will  mention  the  following: — 
D.  Lowrie,  My  Life  in  Prison,  New  York,  191 2;  A.  Berkman,  Prison  Memoirs 
of  an  Anarchist,  New  York,  191 2;  J.  Hawthorne,  The  Subterranean  Brother- 
hood, New  York,  1914;  F.  Martyn,  A  Holiday  in  Gaol,  London,  191 1;  A. 
Cook,  Our  Prison  System,  London,  1914;  "John  Carter,"  Prison  Life  as  I 
Found  It,  in  The  Century  Magazine,  Vol.  LXXX,  No.  5,  September,  1910, 
PP-  752-758. 


A  SCHEME  OF  PENAL  TREATMENT  443 

with  other  detained  persons.  In  small  communities  the  house  of 
detention  may  be  under  the  same  roof  with  the  local  jail,  but 
should  be  separated  from  it  internally. 

These  measures  are  necessary  in  order  to  do  justice  to  those 
who  are  forcibly  detained,  but  who  are  not  necessarily  guilty  of 
any  offense.  It  is  well  for  each  person  to  bear  in  mind  that  at 
some  time  or  other  he  may  find  himself  detained  in  one  of  these 
houses.  But  they  are  also  necessary  for  the  protection  of  the 
public.  If  a  house  of  detention  is  not  sanitary,  it  may  act  as  a 
potent  force  to  spread  infectious  diseases  throughout  the  com- 
munity. If  the  inmates  are  not  kept  carefully  segregated,  it  will 
serve  to  spread  moral  contamination  throughout  the  com- 
munity. In  other  words,  a  house  of  temporary  detention 
should  be  constructed  and  managed  upon  the  theory  that  it  is 
going  to  be  used  for  the  healthy  and  the  innocent  as  well  as  for 
the  diseased  and  the  criminal.  This  theory  has  frequently  been 
ignored,  and  these  houses  have  usually  been  regarded  as  penal 
institutions. 

Local  Jails 

Local  jails  are  needed  for  short  term  sentences  under  six 
months  in  length,  or  one  year  at  most.  These  jails  should  be 
well  built  and  comfortable.  Some  work  should  be  required  of 
the  inmates,  but  it  is  not  possible  in  these  jails  to  introduce  an 
elaborate  system  of  labor  and  of  compensation  for  the  prisoners. 
In  some  cases  these  jails  have  been  located  upon  a  farm  or 
adjacent  to  a  stone  quarry  where  work  not  requiring  much 
training  can  be  carried  on.  These  institutions  should  be  used 
only  for  adult  offenders.  As  short  sentences  are  gradually 
abolished  and  other  minor  penalties  introduced,  the  need  for 
local  jails  will  disappear  in  course  of  time. 

These  local  jails  and  workhouses  have  been  among  the  worst 
penal  institutions  in  this  country,^  partly  owing  to  the  difficulty 
of  carefully  supervizing  them.     It  has  been  suggested  that 

^  Many  of  the  foreign  delegates  at  the  International  Prison  Congress  in 
Washington  in  1910  expressed  themselves  as  astonished  and  shocked  at  the 
condition  of  many  of  our  local  jails  and  workhouses.  (See,  for  example, 
Ugo  Conti  and  Adolphe  Prins,  Some  European  Comments  on  the  American 
Prison  System,  in  the  Jour.  Crim.  Law,  Vol.  II,  No.  2,  July,  191 1,  pp.  199- 
215-) 


444  CiaMINOLOGY 

small  communities  should  unite  in  having  common  local  jails.  ^ 
For  example,  several  counties  might  have  a  jail  in  common  in- 
stead of  each  having  a  separate  jail.  This  jail  would  be  much 
larger  than  the  ordinary  county  jail,  and  would  be  administered 
much  better  because  it  would  be  possible  to  secure  more  com- 
petent officials  to  manage  it.  Instead  of  having  a  jail  or  work- 
house in  each  county,  the  great  majority  of  which  are  badly  con- 
structed and  managed,  it  would  be  possible  to  have  a  few  good 
jails  in  each  state.  This  scheme  will  probably  succeed  where 
the  counties  are  not  widely  separated,  as  they  are  in  some  of  the 
Western  states.  It  will  doubtless  remove  many  of  the  evils  of 
local  jails  and  workhouses. 

Reception  and  Observation  Prisons 

Those  who  are  guilty  of  serious  crimes,  or  of  persistent  re- 
cidivism, should  be  sent  first  to  reception  and  observation 
prisons.  These  prisons  should  be  built  and  equipped  in  such  a 
fashion  as  to  make  it  possible  to  make  a  careful  examination  of 
each  of  these  convicts.  This  examination  should  be  made  during 
a  period  of  observation  lasting  from  a  few  days  to  a  month,  and 
perhaps  even  longer  in  difficult  cases.  When  the  offender  has 
been  properly  classified  he  should  be  sent  to  the  most  suitable 
institution.  The  reception  and  observation  prison  would  there- 
fore serve  as  a  clearing-house  for  all  of  the  penal  institutions  to 
which  criminals  are  committed  for  long  and  indefinite  terms. 
It  might  even  happen  in  some  cases  that  the  scientific  directors 
of  the  observation  prison  would  recommend  to  the  court  that  a 
form  of  penal  treatment  other  than  imprisonment  was  desirable. 

Types  of  Penal  Institutions 

It  is  obviously  impossible  to  provide  a  special  prison  for  every 
conceivable  type  of  criminal.  But  there  will  doubtless  be  the 
following  principal  groups  of  penal  institutions  with  as  many 
subdivisions  as  seems  necessary:  — 

1.  Industrial  reform  schools  and  reformatories. 

2.  Industrial  and  farm  colonies. 

^  See,  for  example,  L.  N.  Robinson,  The  Solution  of  the  Jail  Problem,  in 
the  Jour.  Crim.  Law,  Vol.  VI,  No.  i,  May,  1915,  pp.  101-103. 


A  SCHEME   OF  PENAL  TREATMENT  445 

3.  Asylums  for  the  insane,  the  feebleminded,  and  the  in- 
ebriates. 

4.  Penitentiaries  for  the  incorrigible. 

The  reform  schools  and  reformatories  should  be  for  the 
youthful  offenders  who  give  promise  of  reform.  To  these  in- 
stitutions also  might  be  sent  some  of  the  high-grade  feeble- 
minded who  are  capable  of  receiving  industrial  training. 

To  the  industrial  and  farm  colonies  should  be  sent  the  mature 
occasional  criminals  and  criminals  of  passion  who  are  not  com- 
mitted to  the  local  jails  for  short  sentences.  But  the  principal 
types  of  offenders  for  these  institutions  should  be  vagrants  and 
recidivists  who  ordinarily  commit  petty  offenses.  The  maximum 
length  of  their  sentences  should  vary  according  to  the  number 
of  offenses  they  have  committed. 

The  criminal  asylums  should  be  for  the  distinct  abnormal  and 
pathological  types.  There  should  be  an  asylum  for  the  criminal 
insane,  one  for  the  criminal  aments,  and  one  for  the  criminals 
who  are  inebriates.  Some  of  the  insane  criminals,  and  some  of 
the  inebriates  may  be  cured  and  can  be  released  with  safety. 
But  the  remainder  are  incurable,  and  should  be  permanently 
incarcerated  like  the  criminal  aments. 

Many  of  the  incorrigible  criminals  will  be  sent  from  the 
reception  prison  to  these  asylums.  But  the  criminals  who  do  not 
belong  to  a  distinct  psychiatric  type,  and  whose  careers  have 
shown  that  they  are  in  all  probability  incorrigible,  should  be 
sent  to  penitentiaries,  where  they  will  be  kept  for  long  terms  and 
in  some  cases  permanently.  As  the  specialized  institutions  be- 
come more  fully  differentiated,  there  will  be  a  constantly  de- 
creasing number  of  incorrigible  criminals  to  be  sent  to  the 
penitentiaries.  These  incorrigibles  will  probably  be  in  the  main 
professional  criminals  who  are  too  long  habituated  to  a  criminal 
career  to  be  able  to  change. 

In  some  of  the  penal  colonies  have  developed  convict  com- 
munities which  have  acquired  a  considerable  degree  of  autonomy. 
In  some  of  these  communities  the  convicts  are  permitted  to 
marry  and  raise  families,  to  carry  on  their  own  industries,  and 
sometimes  to  govern  themselves  to  a  large  extent.  To  these 
communities  are  sent  the  convicts  who  have  been  sentenced  for 
life  or  for  long  terms,  and  who  have  made  good  records  in  the 
first  few  years  of  their  imprisonment.     This  is  an  excellent 


446  CRIMINOLOGY 

method  of  dealing  with  some  of  these  criminals,  and  such  com- 
munity life  should  be  developed  as  far  as  possible  in  every  prison 
system.^ 

Political  and  evolutive  offenders  should  be  distinguished  from 
common  criminals  in  all  penal  institutions,  however  severe  may 
be  the  punishment  inflicted  upon  them.  This  distinction  may  be 
made  by  housing  these  offenders  in  a  separate  building  wherever 
this  is  possible,  by  subjecting  them  to  a  different  regime,  etc. 

Release  and  After-Care 

However  good  institutional  treatment  may  be,  it  may  fail  if 
the  inmate  is  not  released  at  the  right  time,  and  is  not  given 
suitable  after-care.  There  should  be  a  competent  parole  au- 
thority capable  of  discerning  the  proper  moment  for  the  release 
of  each  prisoner  between  the  minimum  and  maximum  limits 
prescribed  by  the  law.  The  prisoner  may  be  readily  injured  by 
being  kept  in  prison  either  too  short  a  time  or  too  long  a  time. 
A  parole  board  having  in  its  membership  representatives  of  the 
prison  administration  and  of  the  judicial  system  is  probably  the 
best  authority  for  deciding  the  time  of  release. 

The  parole  board  should  also  exercize  a  watchful  care  over  the 
convict  for  a  time  after  he  is  released.  In  the  first  place,  it 
should  maintain  an  employment  bureau  through  which  to  secure 
positions  for  the  discharged  prisoners.  Otherwise  the  ex-convict 
is  likely  to  fall  back  again  into  a  life  of  crime  through  lack  of 
employment.  In  the  second  place,  the  parole  board  should 
exercize  supervision  over  the  expenditure  of  the  wages  which 
the  convict  may  have  accumulated  while  in  prison.  In  the  third 
place,  the  board  should  keep  a  record  of  the  career  of  each  ex- 
convict  for  some  years  after  he  leaves  prison,  in  order  by  means 
of  these  statistics  to  test  the  success  of  imprisonment  and  of 
parole.  At  the  same  time  the  ex-convicts  should  not  be  sub- 
jected to  an  irksome  surveillance,  for  this  may  hamper  them 

*  The  French  convict  community  in  the  penal  colony  of  New  Caledonia 
has  been  described  in  the  following  book:  George  Griffith,  In  an  Unknown 
Prison  Land,  London,  igor.  The  Philippine  convict  community  known  as 
the  Iwahig  Penal  Colony  on  the  Island  of  Palawan  has  been  described  in 
the  following  article  by  the  Director  of  Prisons  in  the  Philippine  Islands: 
W.  H.  Dade,  The  Prison  System  of  the  Philippines,  in  The  Delinquent,  Vol. 
VI,  No.  19,  October,  1916. 


A  SCHEME  OF  PENAL  TREATMENT  447 

greatly  in  their  later  careers  by  revealing  their  prison  records  to 
the  world,  and  by  humiliating  them  unnecessarily. 

Substitutes  for  Imprisonment 

But  imprisonment  should  not  be  the  ideal  of  penal  treatment. 
In  the  preceding  chapter  I  have  stated  the  defects  inherent  in 
imprisonment.  I  have  shown  that  prison  life  can  never  be  a  fair 
test  of  fitness  for  life  in  society  at  large.  Consequently,  it  should 
be  the  aim  of  every  penal  administration  to  diminish  as  rapidly 
as  possible  the  use  of  imprisonment  as  a  form  of  punishment. 
It  will  never  be  possible  to  abolish  imprisonment  entirely,  be- 
cause there  will  always  remain  a  residuum  of  criminals  who  are 
so  dangerous  to  society  that  it  is  necessary  to  incarcerate  them 
for  the  protection  of  society.  But  substitutes  should  be  devized 
as  rapidly  as  possible  for  most  of  the  forms  of  imprisonment. 

Some  of  these  substitutes  are  already  being  tried.  Enforced 
labor  on  roads,  farms,  etc.,  with  a  small  compensation,  is  being 
used  in  several  countries  as  a  form  of  penal  treatment  for  petty 
offenders  and  criminals  who  furnish  promise  of  reformation. 
Labor  under  custodial  care  should  be  used  much  more  as  a  form 
of  penal  treatment.^ 

Corporal  Punishment 

Corporal  punishment  has  been  used  extensively  in  the  past, 
and  is  sometimes  advocated  today  not  so  much  as  a  substitute 
for  imprisonment  but  in  addition  to  it.  In  fact,  flogging  has 
recently  been  made  a  penalty  for  procuration  in  England,  and 
for  wife-beating  in  some  states  in  this  country.  The  romantic 
notion  that  it  is  a  poetic  penalty  doubtless  has  much  influence 
upon  the  minds  of  many  of  the  advocates  of  corporal  punish- 
ment. I  have  already  pointed  out  in  Chapter  XXII  that  poetic 
penalties  frequently  are  inefficacious.  There  is  no  more  reason 
for  applying  corporal  punishment  to  procurers  and  wife-beaters 
than  to  other  criminals,  for  economic  and  psychopathic  factors 
are  causes  of  procuration  and  wife-beating  just  as  they  are  causes 
of  many  other  kinds  of  crime. 

1  This  method  is  being  used  in  several  states  in  this  country,  such  as 
Colorado,  Vermont,  Oregon,  etc.,  and  in  Ontario  in  Canada.  See  Good 
Roads  and  Convict  Labor,  published  by  the  New  York  Academy  of  Political 
Science,  New  York,  1914. 


mS  CRIMINOLOGY 

''-  Corporal  punishment  is  almost  invariably  brutalizing  not 
only  to  its  victims  but  also  to  those  who  administer  it.  Further- 
more, it  is  likely  to  arouse  sadistic  and  masochistic  feelings  and 
impulses  which  should  be  rigorously  suppressed.  Any  one 
acquainted  with  the  causes  and  history  of  flagellation  is  well 
aware  of  the  close  connection  between  corporal  punishment 
and  these  abnormal  sexual  tendencies.^  Consequently,  cor- 
poral punishment  should  not  be  tolerated  by  the  law  in  any  penal 
system,  except  possibly  for  a  few  young  offenders  for  whom  it 
should  be  prescribed  by  competent  scientific  authorities. 

The  brutalizing  effect  of  corporal  punishment  upon  the  public 
at  large  must  also  be  remembered.  For  the  same  humanitarian 
reasons  that  capital  punishment  should  be  abolished,  corporal 
punishment  should  be  prohibited.  It  is  inconceivable  that  its 
use  as  a  substitute  for  imprisonment  can  be  extended. 

Restitution 

One  of  the  best  substitutes  for  imprisonment  is  restitution. 
'Whenever  possible  an  offender  should  be  forced  to  make  rep- 
aration to  the  victim  of  his  crime.  In  the  case  of  theft  the  thief 
should  be  forced  to  repay  at  least  in  part  what  he  has  stolen. 
In  the  case  of  a  crime  against  the  person  the  criminal  should  be 
required  to  indemnify  his  victim  at  least  in  part  for  the  injury 
he  has  done  to  him.  In  some  cases  restitution  may  be  sufficient 
for  punitive  purposes.  In  other  cases  it  may  well  constitute  a 
part  of  the  penal  treatment. 

Enforced  reparation  has  an  excellent  psychological  and  moral 
effect  upon  the  offender.  It  impresses  upon  his  mind  in  a  direct 
and  concrete  fashion  the  nature  of  the  injury  he  has  caused 
another  person.  It  indicates  to  him  the  inevitable  consequences 
pf  his  conduct  to  others,  and  thus  teaches  him  his  social  and 
moral  responsibilities.  It  therefore  has  great  educational  as 
well  as  punitive  value.  ^ 

1  Numerous  books  have  been  written  about  flagellation,  and  there  is  much 
information  upon  this  subject  in  psychiatric  literature..  A  good  recent  dis- 
cussion of  corporal  punishment  is  to  be  found  in  the  following  book:  —  H.  S. 
Salt,  The  Flogging  Craze,  London,  1916. 

2  Herbert  Spencer  pointed  out  the  pedagogical  significance  of  this  prin- 
ciple more  than  half  a  century  ago  in  his  treatise  on  education.  See  the 
chapter  on  "Moral  Education"  in  his  Education,  New  York,  i860. 


A   SCHEME   OF   PENAL   TREATMENT  449 

Furthermore,  restitution  secures  justice  for  the  victims  of 
crime  who  at  the  present  time  can  secure  no  reparation  without 
recourse  to  the  civil  law,  and  this  recourse  is  usually  ineffectual. 
It  would  be  desirable  to  change  many  if  not  all  of  the  fines  now 
imposed  as  penalties  into  indemnities  to  the  victims  of  crimes. 

Sterilization 

In  a  few  states  in  this  country  laws  have  been  enacted  making 
sterilization  a  penalty.^  One  of  the  principal  motives  back  of 
this  legislation  has  been  to  prevent  criminals  from  reproducing 
themselves  on  the  theory  that  their  criminality  will  be  trans- 
mitted to  their  offspring.  It  is  obvious  that  criminality  per  se 
cannot  be  inherited.  Furthermore,  it  is  hardly  justifiable  to  use 
a  form  of  mutilation  as  a  punishment.  But  it  is  legitimate  to 
impose  sterilization  when  an  individual  has  an  unquestionably 
hereditary  trait  which  is  dangerous  to  society.  Most  of  the 
legislation  on  this  subject  in  this  country  violates  this  scientific 
principle,  and  should  be  revized  accordingly. 

Suitable  forms  of  punishment  based  upon  the  scientific  prin- 
ciples which  have  been  outlined  in  this  book  must  be  worked 
out  through  experience.  Furthermore,  forms  of  penal  treatment 
must  vary  somewhat  from  age  to  age  in  accordance  with  chang- 
ing social  conditions  and  the  corresponding  changes  in  the  traits 
of  criminals. 

^  See  the  reports  made  in  1914,  1915,  and  igi6  by  the  committee  on  the 
sterilization  of  criminals  of  the  "American  Institute  of  Criminal  Law  and 
Criminology." 


PART  VI 
CRIME  AND  SOCIAL  PROGRESS 


CHAPTER  XXVTII 

POLITICAL  AND  EVOLUTIVE  CRIMES  AND 
CRIMINALS 

The  distinction  between  common  crimes  and  political  and  evolutive  crimes 

—  Evolutive  and  involutive  vice —  Freedom  of  thought  and  of  action 

—  Political  freedom  —  Freedom  of  speech  —  Treason  and  sedition  — 
The  types  of  evolutive  and  political  criminals:  radicals  and  conserva- 
tives; the  pathological  type;  the  emotional  type;  the  rational  type  — 
The  instigation  of  political  and  evolutive  crimes  —  The  treatment  of 
evolutive  crime. 

It  is  customary  in  criminological  writings  to  distinguish  be- 
tween common  crimes  and  political  crimes.  Common  crimes 
are  acts  contrary  to  the  law  committed  in  the  interests  of  the 
individual  criminal  or  of  those  personally  related  to  the  criminal. 
Political  crimes  are  acts  contrary  to  the  law  committed  against 
an  existing  government  or  form  of  government  in  the  interest 
of  another  government  or  form  of  government. 

Common  crimes  committed  in  the  course  of  political  activities 
are  sometimes  called  political  crimes,  such  as  the  theft  of  public 
funds,  the  misuse  of  power  by  governmental  officials,  and  other 
offenses  against  the  government  in  the  interests  of  individuals 
committed  by  dishonest  office-holders,  corrupt  politicians,  and 
others.^  But  inasmuch  as  these  crimes  are  committed  in  in- 
dividual interests,  they  are  common  crimes  and  not  political  in 
the  criminological  sense  defined  above. 

^  For  example,  Proal's  book  on  political  crime  is  devoted  largely  to  a  dis- 
cussion of  financial,  electoral,  and  judicial  corruption  in  governmental 
matters,  political  assassinations  for  individual  purposes,  Machiavelism, 
hypocrisy,  demagoguery,  bribery,  etc.,  in  political  affairs.  In  so  far  as  he 
discusses  genuine  political  crimes,  such  as  political  assassinations  in  the 
public  interest,  the  illegal  acts  of  revolutionists,  anarchists,  socialists,  and 
other  propagandists  for  changes  in  society,  etc.,  he  seems  inclined  to  regard 
them  as  common  crimes.  This  is  due  to  the  reactionary  point  of  view  of 
this  writer  who  in  all  his  writings  reveals  his  inability  to  comprehend  that, 
as  an  evolutionary  phenomenon,  society  is  certain  to  change,  and  that  many 
changes  are  highly  desirable.  (L.  Proal,  La  criminaliti  politique,  Paris, 
1895;  Eng.  trans.,  Political  Critne,  New  York,  1898.) 


454  criminology 

The  Distinction  Between  Common  Crimes  and  Political 
AND  Evolutive  Crimes 

Many  political  assassinations  by  regicides,*  acts  against  the 
government  committed  by  rebels  in  revolts,  revolutions  and 
civil  wars,  and  many  similar  acts  are  political  crimes.  Many 
treasonable  acts  also  are  political  crimes.  They  are  political 
crimes  when  committed  for  the  purpose  of  changing  or  over- 
throwing the  existing  government  in  the  interest  of  the  public. 
But  they  are  common  crimes  when  committed  in  the  interests 
of  individuals.  So  that  it  is  the  character  of  the  motive  back 
of  the  treasonable  and  illegal  act  which  determines  whether  it  is 
a  political  or  a  common  crime. 

It  is  also  customary  to  regard  as  political  crimes  acts  com- 
mitted by  the  citizens  of  one  state  against  the  government  of 
another  state.  Thus  spying  in  times  of  peace  and  all  warlike 
acts  in  time  of  war  against  another  country  constitute  political 
crimes.  They  may  or  may  not  be  treasonable  according  to  the 
existing  law  of  treason.  They  may  not  even  be  tried  in  criminal 
courts,  but  by  military  tribunals  according  to  military  law. 
However,  in  accordance  with  criminological  usage,  they  belong 
in  the  category  of  political  crimes. 

It  is,  of  course,  true  that  all  crimes  are  in  one  sense  political, 
because  they  involve  violations  of  laws  which  are  promulgated 
by  governments  and  are  therefore  political  phenomena.  But 
there  is  a  genuine  distinction  between  the  crimes  which  are  in 

'  The  following  are  a  few  of  the  political  assassinations  committed  during 
the  past  century:  Tsar  Paul  of  Russia  in  1801,  Prime  Minister  Percival  of 
England  in  181 2,  Due  de  Berri  of  France  in  1820,  President  Lincoln  of  the 
U.  S.  in  1865,  Sultan  Abdul  Aziz  of  Turkey  in  1876,  President  Garfield  of 
the  U.  S.  in  1881,  Tsar  Alexander  II  of  Russia  in  1881.  President  Camot 
of  France  in  1894,  Premier  Stambouloff  of  Bulgaria  in  1895,  Shah  Nasr-ed- 
dine  of  Persia  in  1896,  Premier  Canovas  del  Castillo  of  Spain  in  1897,  King 
Humbert  of  Italy  in  1900,  President  McKinley  of  the  U.  S.  in  1901,  King 
Alexander  and  Queen  Draga  of  Servia  in  1903,  Minister  of  the  Interior  Von 
Plehve  of  Russia  in  1904,  Grand  Duke  Sergius  of  Russia  in  1905,  King 
Carlos  and  the  Crown  Prince  of  Portugal  in  1908,  Premier  Boutros  of  Egypt 
in  19 10,  Minister  of  War  Nazim  Pasha  of  Turkey  in  1913,  President  Madero 
of  Mexico  in  1913,  King  George  of  Greece  in  1913,  Archduke  Francis  Fer- 
dinand of  Austria  in  1914. 

Most  of  the  above-mentioned  assassinations  are  correctly  designated  as 
political  crimes,  while  a  few  of  them  doubtless  were  common  crimes  because 
they  were  conmiitted  solely  in  the  interests  of  individuals. 


POLITICAL  AND  EVOLUTIVE  CEIMES  455 

criminological  terminology  called  political  and  the  common 
crimes.  Furthermore,  there  are  other  offenses  against  the  law 
which  are  not  common  crimes,  and  yet  are  not  political  crimes 
in  the  usual  criminological  sense.  These  are  illegal  acts  com- 
mitted in  accordance  with  and  in  defense  of  fundamental  human 
rights,  and  in  the  course  of  various  movements  for  bringing  about 
more  or  less  extensive  social  and  economic  changes  in  society. 
While  these  acts  are  in  the  last  analysis  directed  against  existing 
governments  or  forms  of  government,  this  is  not  their  immediate 
object  as  is  the  case  with  ordinary  political  crimes.  Their  im- 
mediate object  usually  is  to  bring  about  far-reaching  and  funda- 
mental moral,  social,  and  economic  changes  which  will  in  turn 
afifect  the  form  of  the  government. 

Among  these  crimes,  which  are  broader  than  the  ordinary 
political  crimes,  are  offenses  in  defense  of  the  right  to  freedom 
of  thought  and  belief,  in  defense  of  the  right  to  express  one's 
self  in  words  in  free  speech,  in  defense  of  the  right  to  dispose  of 
one's  life  as  in  suicide,  etc. ;  and  many  illegal  acts  committed  by 
conscientious  objectors  to  the  payment  of  taxes  or  to  military 
service,  the  offenses  of  laborers  in  strikes  and  other  labor  dis- 
turbances, the  violations  of  law  committed  by  those  who  are 
trying  to  bring  about  changes  in  the  relations  between  the  sexes, 
etc. 

Common  crimes  are  almost  invariably,  anti-social  in  their 
nature,  while  offenses  which  are  directly  or  indirectly  political 
are  usually  social  in  their  intent,  and  are  frequently  beneficial 
to  society  in  their  ultimate  effect.  We  are,  therefore,  justified 
in  calling  them  social  crimes,  as  contrasted  with  the  anti-social 
common  crimes.  Inasmuch  as  these  social  crimes  frequently 
contribute  to  social  progress,  while  the  anti-social  common 
crimes  are  opposed  to  social  progress,  Ferri  has  characterized 
the  social  crimes  as  evolutive,  as  contrasted  with  the  involutive 
or  atavistic  anti-social  crimes.^     In  similar  fashion  Maxwell 


1  "There  exists  an  atavistic  and  an  evolutive  criminality.  The  first  is 
the  common  criminality  such  as  is  shown  in  the  muscular  and  atavistic 
form,  strictly  speaking,  or  the  spurious  form,  a  form  modern  and  modified 
by  evolution.  The  second  is  the  politico-social  criminality  which,  under 
one  or  the  other  of  the  two  forms,  tends  (in  a  more  or  less  illusory  way)  to 
hasten  the  future  phases  of  politico-social  life."  (E.  Ferri,  Criminal  So- 
ciology, Boston,  1917,  p.  335.) 


456  CRIMINOLOGY 

has  designated  these  two  groups  of  crimes  as  the  anterograde 
and  retrograde  crimes.^ 

A  similar  distinction  can  be  made  between  evolutive  and  in- 
volutive  vice.  Conduct  which  is  injurious  to  the  body  and  mind 
must  at  all  times  and  places  be  regarded  as  vicious  as  soon  as  its 
injurious  effect  is  discerned.  Such  vice  is  involutive  and  anti- 
social in  its  character.  But  many  forms  of  conduct  have  been- 
stigmatized  as  vicious,  owing  to  magical  notions,  religious  be- 
liefs, and  conventional  moral  ideas,  which  have  eventually 
proved  to  be  harmless  and  frequently  beneficial.  In  such  cases 
the  alleged  viciousness  of  persons  guilty  of' these  forms  of  con- 
duct must  be  regarded  as  evolutive  and  social. 

Freedom  of  Thought  and  of  Action 

It  may  be  said,  generally  speaking,  that  the  great  majority  of 
political  and  evolutive  crimes  are  committed  in  behalf  of  freedom 
of  thought  or  of  freedom  of  action.  It  is  true  that  occasionally 
political  crimes  are  committed  by  reactionaries  who  are  opposed 
to  freedom,  but  these  are  comparatively  rare  for  the  obvious 
reason  that  those  in  favor  of  more  repression  are  not  likely  to 
oppose  the  repressive  measures  already  in  force. 

Freedom  of  thought  and  freedom  of  action  are  closely  related 
and  shade  into  each  other  almost  imperceptibility.  It  may  ap- 
pear at  first  sight  as  if  freedom  of  thought  is  inalienable  because 
the  mental  processes  of  every  one  are  internal,  and  are  perforce 
free  from  any  direct  supervision  and  control  from  outside.  But 
practically  speaking  freedom  of  thought  is  of  little  value  if  not 
accompanied  with  certain  forms  of  freedom  of  action.  If  people 
are  not  permitted  to  communicate  their  thoughts  to  each  other, 
there  will  be  lacking  the  exchange  of  ideas  and  information,  and 
the  freedom  of  discussion  which  is  the  most  powerful  stimulant 
of  all  kinds  of  thinking.^  Furthermore,  thinking  leads  inevitably 
to  forms  of  belief,  religious  or  otherwise,  which  necessitate  cer- 

^  "II  y  a  done  deux  aspects  dans  la  criminalite;  comme  je  I'ai  indique,  il 
y  a  une  criminalite  retrograde,  et  une  criminality  anterograde;  celle-13, 
representant  des  moeurs  condamnes  par  revolution,  celle-ci  des  moeurs  qui 
se  g^nfiraliseront  plus  tard."  (J.  Maxwell,  Le  concept  social  du  crime,  Paris, 
1914,  p.  52.) 

2  Cf.  W.  Bagehot,  Physics  and  Politics,  New  York,  1884.  See  especially 
Chapter  V  entitled  "The  Age  of  Discussion." 


POLITICAL  AND  EVOLUTIVE   CRIMES  457 

tain  forms  of  action,  so  that  freedom  of  thought  implies  more  or 
less  freedom  of  action.  Thus  freedom  of  thought  implies,  to  say 
the  least,  freedom  of  speech;  freedom  of  publication  in  the  press, 
in  books,  etc.;  and  freedom  of  belief,  religious  or  secular.^ 

Freedom  of  action  has  been  greatly  limited  in  the  past,  and 
still  is  limited  in  many  important  respects.  In  the  past  there  has 
been  an  enormous  amount  of  regulation  of  the  details  of  daily 
life  by  means  of  sumptuary  legislation.  This  legislation  pre- 
scribed the  clothing,  food,  etc.,  of  the  people.  Most  of  this  legis- 
lation has  disappeared  in  civilized  countries,  though  it  crops 
out  occasionally  in  the  form  of  prohibitions  against  the  use  of 
alcoholic  beverages,  drugs,  etc. 

In  this  chapter  I  shall  describe  the  social  and  evolutive 
crimes  which  assume  a  political  form,  that  is  to  say,  which  are 
aimed  directly  at  the  government  or  rulers.  In  the  following 
chapter  I  shall  describe  the  social  and  evolutive  crimes  which  are 
not  aimed  directly  at  the  government  or  rulers,  and  are,  there- 
fore, only  indirectly  political  in  their  form. 

Restrictions  upon  Freedom 

There  still  is  much  limitation  of  political  freedom,  even  in 
civilized  countries.  Wherever  power  is  held  by  hereditary  mon- 
archs  and  aristocracies,  this  power  is  a  limitation  upon  the  poli- 
tical freedom  of  the  remainder  of  the  population.  Out  of  this 
power  arise  the  unjust  special  privileges  of  monarchs,  such  as  the 
laws  against  lese  majeste.  There  is  no  reason  why  monarchs 
should  be  immune  from  criticism  any  more  than  other  mortals. 
They  are  entitled  only  to  the  protection  of  the  laws  against 
slander  and  libel  which  belongs  to  all. 

Whenever  the  suffrage  is  limited  to  one  sex,  the  denial  of  the 
right  of  suffrage  to  the  members  of  the  other  sex  is  a  limitation 
upon  their  political  freedom.     All  special  political  privileges 

'  Excellent  descriptions  of  the  nature  and  history  of  the  freedom  of 
thought  are  given  in  the  following  works — :  J.  M.  Robertson,  A  Short  History 
of  Fr Bethought,  London,  1906,  2  vols.;  J.  B.  Bury,  A  History  of  Freedom  of 
Thought,  London,  1913.  Both  of  these  writers  describe  the  ways  in  which 
Christianity  has  restricted  the  freedom  of  thought  in  the  occidental  world, 
and  the  forces  which  have  opposed  Christianity.  They  also  point  out  the 
dangers  to  freethought  which  still  exist,  and  which  may  restrict  it  in  the 
future. 


45  8  CRIMINOLOGY 

may  be  regarded  as  limitations  upon  the  freedom  of  those  who 
are  discriminated  against.-  There  is,  nevertheless,  justification 
for  limiting  the  political  rights  and  powers  of  the  young  and  the 
mentally  deficient,  because  of  the  obvious  incapacity  of  these 
classes  for  exercizing  these  rights  and  powers.  But  there  can 
be  no  justification  for  limiting  the  political  freedom  of  any  other 
groups,  with  the  possible  exception  of  a  few  of  the  criminals  who 
may  be  regarded  as  having  forfeited  their  right  to  such  freedom. 
This  means  a  democracy  in  the  political  world  in  which  all 
persons  have  the  same  rights  and  powers  with  the  exception 
of  the  above-mentioned  groups. 

Some  of  the  restrictions  upon  the  freedom  of  speech  doubtless 
are  justifiable  and  inevitable.  It  is  inconceivable  that  the  time 
will  ever  come  when  it  will  not  be  necessary  to  restrict  freedom 
of  speech  and  publication  when  it  leads  to  the  making  of  false 
statements  about  persons  in  the  form  of  slander  and  libel,  be- 
cause such  statements  constitute  gross  violations  of  individual 
rights  and  liberties.  Furthermore,  it  will  always  be  necessary 
to  prohibit  fraudulent  statements.  The  laws  against  slander, 
libel,  and  fraudulent  statements  are  absolutely  necessary  to 
protect  the  rights  of  the  individual  against  the  malice  and  intent 
to  injure  of  other  persons. 

It  will  also  be  necessary  always  to  have  at  least  a  few  restric- 
tions upon  the  freedom  of  speech  when  it  is  used  for  the  purpose 
of  inciting  common  crimes.  It  is  inevitable  that  a  government 
should  prohibit  incitement  to  crime,  for  it  would  manifestly 
be  inconsistent  for  a  government  to  prohibit  certain  acts,  and 
then  to  permit  persons  to  do  all  in  their  power  to  induce  others 
to  violate  these  prohibitions.  But  a  law  forbidding  incitement 
to  crime  should  be  carefully  worded  so  as  to  include  only  direct 
incitement  to  crime,  and  should  never  be  construed  by  the  courts 
so  as  to  include  statements  or  deeds  which  might  indirectly  lead 
to  crime.  Such  a  law  should  also  never  be  used  to  suppress 
criticism  of  the  wisdom  of  any  law,  or  agitation  for  the  repeal  of 
a  law.  Furthermore,  whenever  it  is  evident  that  a  person  has 
incited  others  to  criminal  acts  in  the  belief  that  the  laws  which 
make  those  acts  criminal  are  wrong,  or  that  these  acts  are  neces- 
sary for  the  furtherance  of  a  desirable  social  or  political  move- 
ment, this  person  should  be  tried  and  penalized  as  an  evolutive 
and  political  offender,  and  not  as  a  common  criminal. 


POLITICAL   AND  EVOLUTIVE  CRIMES  459 

The  laws  against  treason  are  inevitable  in  any  political  state, 
because  a  government  must  create  and  enforce  such  laws  for 
its  own  self  preservation.  But  such  laws  should  make  treason- 
able only  overt  acts  directed  towards  the  overthrowal  of  the 
state,  and  not  offenses  against  the  royal  family,  etc.,  as  is  true 
in  some  countries.  The  laws  against  treason  in  this  country 
are  fairly  liberal,  and  probably  deserve  no  criticism.  The  re- 
straint with  which  they  were  applied  after  the  Civil  War  did 
much  credit  to  the  government  of  this  country. 

The  laws  against  treason  and  sedition  acquire  special  impor- 
tance in  war  time.  During  a  war  a  country  is  in  a  position  of 
great  danger  from  its  external  foes.  Consequently,  it  is  essen- 
tial that  these  laws  be  executed  with  great  rigor  upon  its  inter- 
nal foes,  whereas  in  times  of  peace  it  is  possible  to  treat  treason- 
able offenses  with  comparative  leniency.  But  there  is  also 
danger  of  these  laws  being  stretched  too  far  in  time  of  war,  so 
as  to  cover  criticisms  of  the  policy  of  government  and  of  the 
men  in  power,  which  may  be  made  with  the  utmost  loyalty 
to  the  country  and  which  may  have  great  utility  in  exposing 
defects  in  the  conduct  of  the  war  by  the  government.  While  a 
censorship  of  information  having  military  value  is  essential  for 
the  prosecution  of  a  war,  a  censorship  of  opinions  under  the 
laws  against  treason  is  intolerable  in  a  democratic  state. 

Political  assassination  should  be  suppressed  rigorously,  as 
has  been  done  when  capital  punishment  has  been  imposed  upon 
the  assassins  of  presidents  of  the  Republic.  In  similar  fashion 
should  be  repressed  other  attacks  upon  life  and  property  for 
political  reasons  by  anarchists,  etc.^ 

But  there  are  other  limitations  of  political  freedom  which 
are  not  justifiable.    It  goes  without  saying  that  anarchism  is 

^  For  example,  in  191 5,  a  bomb  was  placed  in  Saint  Patrick's  Cathedral, 
New  York  City,  by  anarchists.  In  this  case,  however,  it  was  disclosed  in 
the  course  of  the  trial  that  the  police  department  had  used  an  agent  pro- 
vocateur to  instigate  ignorant  and  weak-willed  young  anarchists  to  make 
this  attempt,  so  that  the  responsibility  for  this  criminal  attempt  to  blow  up 
the  Cathedral  apparently  rested  in  part  upon  the  police. 

On  July  22,  1916,  a  bomb  was  thrown  at  the  military  preparedness  parade 
in  San  Francisco  which  killed  at  least  six  persons  and  wounded  twenty-five 
or  more  other  persons.  (See  New  York  Times,  July  23,  iqi6.)  At  the  time 
of  the  present  writing  this  case  is  still  being  tried  in  the  criminal  courts, 
and  it  is  still  uncertain  as  to  who  was  responsible  for  this  bomb  outrage. 


46o  CRIMINOLOGY 

utterly  impracticable  and  impossible,  and  that  violent  attempts 
by  anarchists  to  overthrow  the  state  should  be  sternly  sup- 
pressed. But  in  this  country  there  has  been  a  tendency  to  re- 
press unduly  the  expression  of  anarchistic  opinions  and  ideas. 
This  repression  has  sometimes  been  legal  and  sometimes  il- 
legal. However  mistaken  these  opinions  and  ideas  may  be, 
there  is  no  justification  for  suppressing  their  expression.  This 
tendency  has  gone  so  far  that  it  has  endangered  the  right  of 
asylum  for  political  offenders  from  other  countries,  because  of 
the  laws  which  have  been  passed  against  the  admission  to  this 
country  of  anarchists  and  other  political  offenders. 

There  are  other  limitations  upon  political  freedom  which  are 
examples  of  symbolism  gone  wild  under  the  name  of  patriotism. 
For  example,  in  the  New  York  penal  code  it  is  forbidden  to  use 
the  national  or  state  flag  for  purposes  of  advertisement  or  to 
''pubHcly  mutilate,  deface,  defile,  or  defy,  trample  upon,  or  cast 
contempt,  either  by  words  or  act,  upon  any  such  flag."  (Article 
134.)  Under  this  provision  of  the  penal  code  an  agitator  for 
international  socialism  in  New  York  City  who  had  published  a 
cartoon  in  behalf  of  internationalism  in  which  the  national  flag 
was  represented  was  sent  to  prison  for  thirty  days  on  June  3, 
1 91 6,  for  thus  desecrating  the  flag.^ 

In  191 6  in  Tacoma,  Washington,  a  man  was  convicted  of 
"libelUng"  a  patriotic  hero  because  he  had  referred  to  George 
Washington  as  a  "slaveholder  and  inveterate  drinker."  ^ 

Freedom  of  speech  has  also  frequently  been  suppressed  il- 
legally in  this  country.  Again  and  again  it  has  happened  that 
the  police  and  sometimes  the  courts  have  prevented  the  propa- 
gation of  unpopular  views  by  restricting  the  right  of  assemblage 
and  in  other  ways.^  While  the  laws  against  unlawful  assembly 
are  necessary  and  desirable  in  so  far  as  they  are  directed  against 
assemblies  for  the  express  purpose  of  violating  the  law,  they 

1  Case  of  The  State  v.  Bouck  White.  In  March,  191 7,  the  same  defendant 
and  several  co-defendants  were  sent  to  prison  in  New  York  City  for  having 
burned  the  United  States  flag  in  a  religious  ceremony. 

''  See  The  New  York  Times,  June  4,  1916. 

'  Numerous  cases  of  unlawful  suppression  of  free  speech  and  free  assem- 
blage have  been  described,  as,  for  example,  in  J.  G.  Brooks,  Freedom  of 
Assemblage  and  Public  Security,  in  the  Papers  and  Proceedings  of  the  Am. 
Sociological  Society,  Vol.  IX,  Chicago,  1915,  pp.  11-28;  T.  Schroeder,  Free 
Speech  for  Radicals,  2d  ed.,  New  York,  1916. 


POLITICAL  AND  EVOLUTIVE  CRIMES  46 1 

have  frequently  been  construed  as  prohibiting  assemblies  held 
for  the  purpose  of  disseminating  radical  ideas,  or  assemblies 
which  might  conceivably  result  in  disorder,  though  through 
no  fault  of  the  organizers  of  the  assembly. 

As  a  matter  of  fact,  experience  has  furnished  abundant  evi- 
dence that  when  no  restrictions  are  placed  upon  the  rights  of 
freedom  of  speech  and  freedom  of  assemblage,  except  in  so  far 
as  it  is  necessary  to  protect  the  traffic  on  the  public  highways 
from  interference,  there  is  much  less  danger  of  disorder  than 
when  such  restrictions  are  imposed.  Under  freedom  the  wise 
and  practicable  ideas  receive  a  deserved  publicity,  while  the 
foolish  and  dangerous  ideas  are  less  likely  to  do  harm  when  those 
who  hold  them  are  given  an  opportunity  to  blow  off  steam  than 
if  they  are  kept  bottled  up.  This  has  been  true  and  may  be  so 
still  in  Boston,  where  freedom  of  speech  and  of  assemblage  has 
been  tested  on  the  Common.  It  seems  to  be  true  at  the  present 
time  (1917)  in  New  York,  though  it  has  not  always  been  true 
in  this  city  where  police  commissioners  have  frequently  indulged 
in  unlawful  suppression  of  the  rights  of  freedom  of  speech  and  of 
assemblage.  For  many  years  freedom  of  speech  and  of  assem- 
blage has  been  permitted  with  excellent  results  on  Sunday  after- 
noons at  Hyde  Park  in  London. 

The  Types  of  Evolutive  and  Political  Criminals 

Let  us  now  consider  briefly  the  traits  of  the  evolutive  and 
political  criminals.  According  to  political  and  social  conditions, 
any  one  may  become  a  criminal  of  this  type.  Under  certain 
conditions  a  conservative  may  be  such  a  criminal,  under  other 
conditions  a  radical  may  be  the  criminal.  A  monarch  is  the 
incarnate  personification  of  conservatism,  and  yet  Charlfes  the 
First  in  England  and  Louis  the  Sixteenth  in  France  were  be- 
headed as  political  criminals.  Both  the  religious  and  the  irre- 
ligious may  become  such  criminals.  There  is  perhaps  nothing 
in  human  culture  more  archaic  than  religion.  And  yet  under 
the  French  Revolution  the  clergy  were  proscribed  as  criminals. 

However,  as  a  general  rule,  the  evolutive  and  political  crimi- 
nals belong  to  the  more  progressive  and  radical  portion  of  the 
community.  The  reason  for  this  is  apparent.  The  conservatives 
are  interested  mainly  if  not  solely  in  maintaining  the  estabUshed 


462  CRIMINOLOGY 

order.  So  that  they  are  not  likely  to  come  into  conflict  with  the 
existing  laws.  It  is  usually  only  when  a  great  revolution  is 
successful  and  sweeps  the  progressives  and  radicals  ii;ito  power 
that  the  conservatives  become  the  criminals  in  the  eye  of  the 
new  order.  But  the  progressives  and  the  radicals,  on  the  con- 
trary, are  constantly  trying  to  bring  about  changes,  and  are, 
therefore,  very  likely  to  come  into  conflict  with  the  existing 
laws.  So  that,  while  any  kind  of  person  may  conceivably  at 
some  time  or  place  become  an  evolutive  or  a  political  criminal, 
we  are  justified  in  assuming  that  the  principal  type  or  types  of 
evolutive  and  political  criminals  are  to  be  found  among  the 
progressives  and  radicals. 

We  can  distinguish  three  principal  types  of  evolutive  and 
political  criminals,  namely,  the  pathological,  the  emotional,  and 
the  rational  types.  Insanity  of  different  sorts  and  other  forms 
of  mental  morbidity  are  more  or  less  prevalent  among  these 
criminals.  This  is  specially  true  of  the  regicides  or  regenticides 
who  assassinate  monarchs,  and  the  magnicides  who  kill  any 
persons  who  are  in  authority  or  who  have  attained  public 
prominence.  It  is  also  true  of  those  who  by  throwing  bombs, 
exploding  mines,  and  in  other  ways  kill  innocent  people  in  public 
places.  Some  of  these  assassinations  are  obviously  common 
crimes  committed  by  insane  criminals.  For  example,  an  insane 
person  may  kill  a  public  official  because  he  is  laboring  under 
the  delusion  that  he  is  being  persecuted  by  this  official.  Or  he 
may  assassinate  a  prominent  person  or  throw  a  bomb  in  a  public 
place  in  order  to  attract  the  attention  of  the  pubKc  to  himself, 
thus  gratifying  his  inordinate  vanity.  Or  he  may  commit  one 
of  these  crimes  as  an  indirect  method  of  committing  suicide, 
since  he  has  not  sufficient  physical  courage  to  kill  himself. 

But  some  of  these  mentally  unbalanced  criminals  doubtless 
are  of  the  political  type.  This  is  the  case  when  an  insane  person 
has,  through  reading  anarchistic  and  revolutionary  literature  or 
in  some  other  way,  acquired  the  notion  that  a  monarch  or  the 
president  of  a  republic  or  a  prime  minister  or  a  prominent  editor 
is  partly  or  wholly  responsible  for  the  woes  of  mankind,  and 
that  the  most  effective  method  of  relieving  these  woes  is  to 
assassinate  the  guilty  party.  Or  an  insane  person  may  throw  a 
bomb  in  an  opera  house  or  in  a  restaurant  under  the  delusion 
that  he  is  killing  members  of  the  class  which  is  responsible  for 


POLITICAL  AND  EVOLUTIVE   CRIMES  463 

human  misery.  Or  he  may  kill  people  in  a  public  place  regard- 
less of  their  innocence,  or  destroy  property  regardless  of  its 
ownership,  under  the  delusion  that  he  will  thereby  precipitate 
the  revolution  that  will  bring  into  being  the  Utopia  which  man- 
kind is  awaiting. 

Many  other  examples  of  the  pathological  type  of  evolutive 
criminal  might  be  mentioned,  as  when  a  religious  delusion  leads 
an  insane  person  to  practise  human  sacrifice.  The  mental 
morbidity  of  these  pathological  criminals  is  readily  discovered 
by  means  of  a  psychiatric  and  medical  examination.  But  it  is 
usually  clearly  indicated  beforehand  in  the  obvious  falsity  of 
their  ideas,  and  in  the  folly  of  the  measures  they  use  to  attain 
their  ends.  Their  methods  are  usually  of  the  utmost  violence, 
involving  the  taking  of  himian  life  and  the  destruction  of  prop- 
erty, and  are  almost  certain  to  react  injuriously  upon  the  cause 
for  which  they  are  striving.  Furthermore,  in  some  of  these 
crimes  there  may  be  mixed  some  of  the  motives  of  the  common 
criminal,  such  as  vanity,  personal  spite,  the  desire  to  die  without 
the  courage  to  kill  one's  self,  etc.^ 

It  is  impossible  to  draw  a  hard  and  fast  line  between  the 
pathological  and  the  emotional  types.  It  is  evident  that  most 
if  not  all  of  the  pathological  offenders  are  highly  emotional.  But 
there  are  others  who  also  are  very  emotional,  and  yet  can  hardly 
be  regarded  as  pathological.  In  fact,  it  is  probable  that  the 
majority  of  the  evolutive  and  political  criminals  are  of  the 
emotional  type,  without  being  distinctly  pathological.  The 
reasons  for  the  predominance  of  the  emotional  type  can  be 
easily  discerned.    Strong  feelings  constitute  a  powerful  dynamic 

^  Many  writers  have  described  the  pathological  traits  of  evolutive  and 
political  criminals.  Nearly  every  political  assassination,  bomb  outrage, 
and  like  event  has  produced  a  number  of  such  writings  which  have  con- 
tributed to  the  valuable  store  of  data  upon  this  subject.  A  number  of  general 
works  also  have  been  published.  The  following  are  a  few  of  the  general 
and  special  writings  on  this  subject:  —  C.  Lombroso  and  R.  Laschi,  Le  crime 
politique  et  les  revolutions,  Paris,  1892,  2  vols.;  E.  R6gis,  Les  regicides  dans 
Vhistoire  et  dans  le  present,  Lyons,  1890;  E.  C.  Spitzka,  Regicides,  Sane  and 
Insane,  in  the  New  York  Medical  Journal,  August  15  to  September  5,  1903; 
C.  F.  MacDonald,  The  Trial,  Execution,  A  utopsy  and  Mental  Status  of  Leon 
F.  Czolgosz,  Alias  Fred  Nieman,  The  Assassin  of  President  McKinley,  in  the 
American  Journal  of  Insanity,  Vol.  LVIII,  No.  3,  January,  1902;  W.  Chan- 
ning,  The  Mental  Status  of  Czolgosz,  The  Assassin  of  President  McKinley,  in 
the  American  Journal  of  Insanity,  Vol.  LIX,  No.  2,  1902. 


464  CRIMINOLOGY 

force  which  may  readily  impel  those  possessing  them  into  com- 
mitting these  offenses,  whereas  phlegmatic  and  calculating 
individuals  are  more  likely  to  lack  this  impulse. 

Furthermore,  some  of  the  emotions  in  this  type  of  offender  are 
of  the  sympathetic  type.  These  sympathetic  emotions  give 
rise  to  compassion  for  human  misfortunes  and  a  desire  to  amel- 
iorate them.  This  desire  may  become  a  veritable  passion,  and 
thus  lead  to  offenses  similar  to  the  common  crimes  of  passion  due 
to  altruistic  feelings.  These  altruistic  common  crimes  are  com- 
mitted in  behalf  of  another  individual,  as,  for  example,  the  crime 
of  a  mother  in  behalf  of  her  child,  of  a  lover  in  behalf  of  a  loved 
one,  etc.  They  entail  doing  harm  to  persons  other  than  the 
objects  of  the  altruism,  and  usually  display  a  lack  of  social 
consciousness  on  the  part  of  the  criminal.  ^ 

Many  of  the  evolutive  and  political  offenses  also  are  altruistic 
crimes  of  passion.  But  they  are  committed  in  the  interest  of  the 
whole  or  of  a  considerable  portion  of  society.  There  is  not  the 
same  narrow  personal  element  in  these  offenses  which  is  present 
in  the  common  crimes.  Lombroso  was  so  impressed  by  the 
likeness  between  many  political  offenses  and  crimes  of  passion 
that  he  classified  the  political  offender  as  a  subtype  under  the 
criminal  by  passion.  But,  while  this  similarity  doubtless  exists, 
it  is  preferable  to  classify  them  separately  for  the  reasons  indi- 
cated above. 


^  Vallon  and  Genil-Perrin  have  described  a  number  of  altruistic  crimes  of 
the  common  type.  Among  these  crimes  are  thieving  in  behalf  of  another, 
homicide  in  the  interest  of  a  third  person,  homicide  committed  in  the  sup- 
posed interest  of  the  victim  by  fanatics  and  persons  suffering  from  melan- 
cholia and  the  mania  of  persecution,  euthanasia,  indirect  automutUation  in 
the  place  of  suicide,  etc.  They  point  out  the  anti-social  character  of  these 
crimes  in  the  following  words:  — 

"  Le  sentiment  altruiste  n'est  done  ni  bon  ni  mauvais.  Ce  qui  est  mauvais, 
c'est  de  ne  pas  etre  capable  d'en  r^gler  I'exercice;  ce  qui  est  bon,  c'est  de 
I'asservir,  comme  toutes  nos  autres  tendances,  k  notre  volonte  consci- 
ente.  .  .  .  Tout  comme  I'egoisme  irrefrene,  I'abandon  aux  impulsions  al- 
truistes  peut  acqu6rir  un  caractfere  antisocial.  Nous  venons  de  faire  allusion 
t  quelques  peches  veniels  de  I'altruisme  dont  nous  pouvons  nous  rendre 
coupables  tous  les  jours.  Mais  si  nous  avons  pu  en  faire  comprendre  la 
portee,  c'est  gr4ce  k  I'etude  des  manifestations,  k  la  fois  pathalogiques  et 
criminelles,  de  I'cmotion  tendre,  que  nous  avons  poursuivie  dans  ce  travail." 
(Ch.  Vallon  and  G.  Genil-Perrin,  Crime  et  altruisme,  in  the  Arch,  d'anth. 
crim.,  Vol.  XXVIII,  1913,  p.  186.) 


POLITICAL   AND   EVOLUTIVE   CRIMES  465 

At  the  same  time  it  must  be  borne  in  mind  that  some  of  the 
evolutive  and  political  criminals  are  intensely  individualistic  and 
egoistic,  and,  therefore,  to  that  extent  unsocial,  if  not  anti-social. 
In  fact,  some  of  their  offenses  are  so  egoistic  that  it  becomes  a 
serious  question  whether  they  should  not  be  regarded  as  common 
crimes.  The  only  thing  that  preserves  their  character  as  evolu- 
tive crimes  is  that  they  are  apparently  committed  in  accordance 
with  a  sincere  belief  in  certain  principles  of  conduct  and  of  social 
organization. 

Both  of  these  emotional  types  are  to  be  found,  for  example, 
among  the  anarchists.  Some  of  the  anarchists  possess  strong 
social  feelings,  and  seem  to  arrive  at  their  anarchistic  philosophy 
from  a  social  point  of  view.  Other  anarchists  are  inordinately 
egoistic  and  individualistic,  and  advocate  a  program  which  is 
intensely  unsocial  if  not  anti-social.  Their  anarchism  apparently 
arises  out  of  a  conscious  or  sub-conscious  desire  to  be  free  from 
social  restraint.  These  temperamental  differences  exist  even 
when  the  underlying  philosophy  of  the  anarchists  is  apparently 
the  same.  However,  both  of  these  types  of  offenders  may  dis- 
play strong  passions  indicating  the  presence  of  powerful  feelings, 
though  these  may  take  different  directions.^ 

The  offenders  of  the  rational  type  are  by  far  the  least  nu- 
merous. The  reasons  for  this  can  be  readily  discerned.  Persons 
in  whom  the  reasoning  faculty  is  highly  developed  are  relatively 
cool  and  deliberate  in  their  conduct,  and  do  not  usually  act  upon 
the  impulse  of  the  moment.  Consequently,  they  are  not  likely  to 
try  to  bring  about  changes  by  means  of  violence,  except  as  a 
means  of  last  resort,  but  try  usually  to  accomplish  their  ends 
peacefully  and,  so  far  as  possible,  within  the  limits  of  law  and 
order.  They  are,  perhaps,  even  more  prone  than  persons  of  the 
emotional  type  to  see  the  defects  in  the  existing  order.  But  they 
use  constructive  rather  than  destructive  means  to  remedy  these 
defects. 

It  must  not  be  thought,  however,  that  these  persons  of  the 
rational  type  are  lacking  in  emotions.     In  many  cases  their 

^  The  anarchists  have  been  described  in  many  books,  a  few  of  which  I 
will  mention  here: — E.  Sernicoli,  L'anarchia  e  gli  anarchici,  Milan,  1894,  2 
vols.;  E.  V.  Zenker,  Anarchism,  New  York,  1897;  E.  Zoccoli,  L'anarchia, 
Turin,  1907;  P.  Latouche,  Anarchy,  London,  1908;  E.  A.  Vizetelly,  The 
Anarchists,  London,  191 1. 


466  CRIMINOLOGY 

afifective  nature  is  doubtless  as  fully  developed  as  in  persons  of 
the  emotional  type.  Their  altruistic  feelings,  their  hiunanitarian 
impulses,  and  their  social  consciousness  are  quite  as  strong  as 
those  of  the  emotional  persons.  But  these  affective  tendencies 
are  guided  better  by  the  reason  and  controlled  more  effectively 
by  the  will  than  in  the  emotional  persons. 

There  are,  however,  times  when  conditions  become  so  in- 
tolerable that  even  the  most  self-controlled  persons  are  driven  to 
violate  laws  in  order  to  bring  about  changes.  At  such  times 
offenders  of  the  rational  type  become  much  more  numerous. 
Thus  under  a  brutal  autocracy  or  bureaucratic  oligarchy  uni- 
versity students  become  t3Tannicides,  and  many  of  the  political 
offenders  are  drawn  from  the  educated  classes.^ 

I  have  already  stated  that  there  are  a  few  crimes  on  the 
borderline  between  common  crimes  and  evolutive  crimes.  It 
also  happens  from  time  to  time  that  a  common  criminal  pretends 
to  be  an  evolutive  or  political  criminal  in  order  to  secure  im- 
munity from  punishment  or  a  lighter  penalty.  But  these  cases 
are  rare,  since  such  attempts  are  usually  made  only  by  the  most 
clever  of  the  professional  criminals,  and  not  frequently  by  them 
since  they  are  liable  to  acquire  thereby  an  undesirable  publicity. 
When  such  attempts  are  made  by  pathological  individuals, 
they  are  either  on  the  borderline  or  can  be  easily  detected  as 
common  criminals. 

The  Instigation  of  Political  and  Evolutive  Crimes 

It  also  happens  that  some  of  the  alleged  evolutive  and  polit- 
ical crimes  are  committed  as  a  result  of  the  activities  of  the 
agents  provocateurs.  These  are  police  spies  who  are  detailed  to 
instigate  crimes  among  persons  who  are  ignorant  and  suggest- 
ible, and  who  frequently  are  mentally  unbalanced  as  well,  who 
have  acquired  a  smattering  of  radical  and  revolutionary  ideas. 
These  agents  are  sent  into  labor  unions,  socialist  organizations, 
anarchist  groups,  and  wherever  these  weak  individuals  may  be 
found.  It  is,  of  course,  incumbent  upon  the  police  to  watch 
these  radical  and  revolutionary  groups  in  order  to  repress  vio- 

^  Such  a  situation  has  existed  in  modern  times  in  Russia.  See,  for  example, 
E.  Tamowski,  Les  crimes  politiques  en  Rtissie  (ipoi-igoj),  in  the  Arck. 
d'anth.  crim.,  Vol.  XXII,  1907,  pp.  40-57. 


POLITICAL  AND  EVOLUTIVE   CRIMES  467 

lent  attacks  upon  life  and  property.  But  unscrupulous  police 
officials  will  sometimes  try  to  incite  members  of  these  groups 
to  crime  in  order  to  secure  the  financial  rewards  and  glory  re- 
sulting from  the  repression  of  these  crimes.  Wherever  there  is 
a  strongly  centralized  autocratic  and  bureaucratic  government, 
these  spying  methods  are  likely  to  be  used  in  order  to  bring 
public  condemnation  upon  the  radicals  and  to  intimidate  them 
from  activity.^ 

But  even  more  sinister  than  this  spying  by  police  agents  are 
the  activities  of  a  certain  type  of  private  detective  agency  which 
has  become  prevalent  recently,  at  any  rate  in  this  country. 
There  is  much  evidence  now  available  to  prove  that  these  agen- 
cies are  frequently  hired  by  employers,  capitalists,  and  other 
wealthy  individuals  to  instigate  crime  among  radicals,  to  spy 
upon  agitators  and  to  try  to  secure  their  conviction  in  criminal 
courts,  to  furnish  special  guards  at  times  of  labor  disturbances, 
to  act  as  strike-breakers,  etc.^    All  of  these  activities  are  well 

^  The  activities  of  the  agents  provocateurs  in  various  European  countries 
have  been  described  in  many  books,  as,  for  example,  the  following:  —  P. 
Kropotkin,  The  Terror  in  Riissia,  London,  1909;  A.  Bebel,  My  Life,  Chicago, 
1912;  G.  J.  Holyoake,  Sixty  Years  of  an  Agitator's  Life,  London,  1900. 

'^  Cf.  R.  Hunter,  Violence  and  the  Labor  Movement,  New  York,  19 14.  Hunter 
gives  a  good  description  of  the  activities  of  these  private  detective  bureaus 
in  this  country,  especially  in  Chapter  XI  entitled  "The  Oldest  Anarchism." 
He  says  that  "to-day  there  exist  in  the  United  States  thousands  of  so-called 
detective  bureaus  where  armed  men  can  be  employed  to  do  the  bidding  of 
any  wealthy  individual.  While,  no  doubt,  there  are  agencies  that  conduct 
a  thoroughly  legitimate  business,  there  are  unquestionably  numerous 
agencies  in  this  country  where  one  may  employ  thugs,  thieves,  incendiaries, 
dynamiters,  perjurers,  jury-fixers,  manufacturers  of  evidence,  strike-breakers 
and  murderers.  A  regularly  established  commerce  exists,  which  enables  a 
rich  man,  without  great  difficulty  or  peril,  to  hire  abandoned  criminals, 
who,  for  certain  prices,  will  undertake  to  execute  any  crime.  If  one  can 
afiford  it,  one  may  have  always  at  hand  a  body  of  highwaymen  or  a  small 
private  army.  Such  a  commerce  as  this  was  no  doubt  necessary  and  proper 
in  the  Middle  Ages  and  would  no  doubt  be  necessary  and  proper  in  a  state 
of  anarchy,  but  when  individuals  are  allowed  to  employ  private  police, 
armies,  thugs,  and  assassins  in  a  country  which  possesses  a  regularly  estab- 
lished state,  courts,  laws,  military  forces,  and  police,  the  traffic  constitutes 
a  menace  as  alarming  as  the  Black  Hand,  the  Camorra,  or  the  Mafia.  The 
story  of  these  hired  terrorists  and  of  this  ancient  anarchy  revived  surpasses 
in  cold-blooded  criminality  any  other  thing  known  in  modem  history.  That 
rich  and  powerful  patrons  should  be  allowed  to  purchase  in  the  market  poor 
and  desperate  criminals  eager  to  commit  any  crime  on  the  calendar  for  a 


468  CRIMINOLOGY 

calculated  to  lead  directly  or  indirectly  to  many  common  crimes, 
while  by  increasing  the  incentives  to  violence  on  the  part  of 
radical  groups  and  the  workers  and  by  aggravating  the  bitter- 
ness of  feeling  between  the  different  classes  they  increase  the 
number  of  evolutive  and  political  crimes.  These  activities  both 
of  the  police  agents  and  of  the  private  agencies  stimulate  crime, 
hinder  social  progress,  and  constitute  a  grave  menace  to  free 
institutions. 

The  Treatment  of  Evolutive  Crime 

The  preceding  exposition  of  the  nature  of  evolutive  and  polit- 
ical crime  and  of  the  traits  of  those  who  commit  these  offenses 
has  shown  the  importance  of  dealing  in  an  appropriate  manner 
with  this  type  of  crime  and  of  criminal.  Special  provision  should 
be  made  in  law  and  procedure  for  distinguishing  these  offenses 
from  ordinary  crimes.  As  I  have  already  pointed  out  in  earlier 
chapters,  there  should  be  a  special  tribunal  for  the  trial  of  these 
offenders,  and  special  methods  of  restraining  and  punishing 
them.  Up  to  the  present  time  there  has  been  a  lamentable 
failure  to  do  any  of  tliese  things  in  this  country. 

few  dollars,  is  one  of  the  most  amazing  and  incredible  anachronisms  of  a 
too  self-complaisant  Republic."    {Op.  cit.,  pp.  281-282.) 

The  ex-convicts  and  thugs  employed  by  these  detective  agencies  have 
been  used  in  many  recent  labor  disturbances,  such  as  the  strikes  in  the 
West  Virginia  and  the  Colorado  mining  districts. 


CHAPTER  XXrX 
EVOLUTIVE  CRIME  AND  SOCIAL  READJUSTMENT 

The  significance  of  evolutive  crime  —  Religious  restrictions  upon  freedom  — 
Christianity  as  the  national  religion  —  The  laws  against  blasphemy 
and  profanity  —  Sabbatarian  legislation  —  Religious  discrimination 
in  military  conscription  —  Sumptuary  and  economic  legislation  — 
The  law  against  suicide  —  Repression  in  matters  of  sex  and  reproduc- 
tion —  The  conservadsm  of  the  human  mind  —  The  prevention  of 
evolutive  crime:  flexibility  in  the  organization  of  society  —  Evolutive 
crime  and  democracy. 

Evolutive  crimes  have  been  committed  ever  since  the  be- 
ginning of  governments  and  law.  Custom,  public  opinion, 
religious  beliefs,  moral  ideas,  and  laws  at  any  given  time  and 
place  prescribe  certain  forms  of  conduct,  and  a  more  or  less  fixed 
mode  of  living.  These  forces  maintain  the  prevailing  regime, 
and  invariably  present  much  opposition  to  change.  Conse- 
quently, in  order  to  bring  about  change  it  frequently  becomes 
necessary  for  some  individuals  to  defy  these  forces  for  perman- 
ence, and  in  some  cases  this  defiance  involves  violation  of  the 
law.  So  that  evolutive  crime  is  an  inevitable  concomitant  of 
social  change  and  progress. 

The  Significance  of  Evolutive  Crime 

In  fact,  the  emergence  and  treatment  of  evolutive  crime  epito- 
mize in  a  measure  the  perennial  conflict  between  the  forces  for 
change  and  the  forces  for  permanence  in  social  evolution.  The 
repression  of  this  type  of  crime  frequently  comes  from  tyrants, 
monarchs,  oligarchies,  and  small  ruling  classes  to  whose  interest 
it  is  to  preserve  the  existing  system.  Consequently,  this  kind 
of  repression  often  results  in  tyrannicide  and  regicide.  But  even 
when  no  tyrant  or  oligarchy  happens  to  be  dominant,  the  widely 
diffused  conservative  influences  of  custom,  religion,  and  morality 
as  embodied  in  the  law  are  certain  to  furnish  more  or  less  re- 
pression.   So  that  the  repressive  forces  are  always  present. 


47°  CRIMINOLOGY 

In  addition  to  being  inevitable,  the  repression  of  evolutive 
crime  is  to  a  certain  extent  useful.  It  is  useful,  in  the  first 
place,  because  law  and  order  in  general  must  be  maintained  in 
the  long  run,  whereas  if  there  was  no  repression  whatever,  a 
state  of  anarchy  would  soon  arise.  In  the  second  place,  at  least 
a  small  amount  of  repression  is  usually  of  value  for  the  pres- 
ervation of  the  existing  social  order,  because,  while  no  social 
system  is  ideal,  it  has  rarely  ever  been  feasible  to  change  im- 
mediately from  one  system  to  another. 

On  the  other  hand,  such  repression  may  readily  overstep  the 
bounds  of  social  utility,  and,  as  a  matter  of  fact,  this  happens 
frequently.  Excessive  repression  almost  invariably  reacts  un- 
favorably upon  the  existing  system,  and  is  liable  to  create  an 
intolerable  situation  in  which  temporary  disorder  becomes  pref- 
erable to  order.  Then  comes  a  sudden  explosion  in  the  form 
of  a  revolt,  revolution,  civil  war,  coup  d'etat,  etc.,  which  over- 
throws the  repressive  forces,  and  brings  about  changes  in  the 
social  system. 

So  that  repression  of  evolutive  crime  has,  on  the  one  hand, 
been  useful  in  checking  foolish  attempts  at  change.  These 
attempts  are  foolish  in  some  cases  because  the  conditions  are 
not  yet  ripe  for  the  proposed  changes,  and  in  other  cases  because 
the  attempted  changes  are  hopeless  of  attainment  under  any 
conditions.  On  the  other  hand,  this  repression  has  hindered 
social  progress  considerably  by  putting  obstacles  in  the  way  of 
desirable  changes  which  were  feasible. 

It  is  very  important  that  the  public  should  understand  clearly 
the  distinction  between  evolutive  and  common  crimes,  and 
should  recognize  the  evolutive  crimes  which  are  most  preva- 
lent in  the  present  stage  of  social  evolution.  A  general  under- 
standing of  this  distinction  would  help  greatly  in  deciding  how 
much  repression  of  evolutive  crime  is  desirable,  and  what  are 
the  wisest  methods  of  dealing  with  evolutive  criminals. 

Religious  Restrictions  upon  Freedom 

In  this  chapter  I  shall  describe  briefly  some  of  the  laws  which 
suppress  evolutive  crimes  in  this  country,  and  a  few  recent  in- 
stances of  such  suppression.  Some  of  these  laws  are  necessary, 
and  their  enforcement  is  justifiable.    Other  laws  are  absolutely 


EVOLUTIVE  CRIME  AND  SOCIAL  READJUSTMENT  47 1 

unjustifiable.  Furthermore,  in  some  cases  suppression  has 
taken  place  without  even  a  legal  sanction. 

Nothing  in  human  culture  is  more  archaic  than  religion,  be- 
cause it  professes  to  teach  absolute  truth,  and  to  inculcate  im- 
mutable rules  of  conduct.  Consequently,  religion  has  always 
been  a  powerful  force  for  repressive  legislation,  and  therefore 
a  prohfic  cause  of  evolutive  criminality.  Even  in  this  "land  of 
liberty"  one  religion  has  become  an  oflScial  institution  to  such 
an  extent  as  to  give  rise  to  many  evolutive  crimes. 

Freedom  in  matters  of  religion  must  necessarily  include  the 
right  to  express  one's  opinions  about  religion.  Laws  which  pro- 
hibit any  one  from  questioning  the  existence  of  a  god,  from  deny- 
ing the  divinity  of  Jesus,  or  from  giving  expression  to  any  other 
religious  or  irreligious  belief  are  gross  violations  of  this  right. 
Indeed,  this  right  should  be  held  so  inviolable  that  it  would  not 
be  abridged  even  indirectly.  And  yet  this  occurs  every  time  the 
Christian  religion  is  officially  recognized  as  the  national  religion 
of  this  country.  It  is  obvious  that  a  genuine  and  consistent 
application  of  the  principle  of  religious  freedom,  which  is  em- 
bodied in  our  Constitution,  requires  that  there  should  be  no 
of&cial  or  national  religion  branded  upon  every  citizen,  but  that 
each  citizen  should  be  left  free  to  choose  his  own  religion  for 
himself,  or  to  remain  irreligious. 

Christianity  as  the  National  Religion 

Christianity  has  been  officially  recognized  as  the  national 
religion  in  many  ways.  This  happens  every  time  that  an  official 
function  is  accompanied  by  a  religious  ceremony,  as,  for  example, 
when  Congress  is  opened  with  prayer.  It  is  recognized  in 
Thanksgiving  Day  proclamations  by  the  President  and  in  many 
other  state  documents.  But  the  United  States  has  been  judi- 
cially declared  to  be  a  "Christian"  country  in  numerous  de- 
cisions of  many  of  the  highest  courts  of  the  land,  a  few  of  which 
I  will  cite. 

In  order  to  understand  the  historical  background  of  these 
decisions  it  will  be  well  to  recall  a  few  facts  of  English  legal 
history.  Early  in  the  development  of  English  law  the  Christian 
Scriptures  came  to  be  read  into  the  common  law  by  a  curious 
process  which  has  been  described  in  numerous  historical  works 


472  CRIMINOLOGY 

and  in  the  writings  of  Thomas  Jefferson/  but  which  there  is  not 
the  space  to  describe  here.  As  a  result  of  this  singular  occur- 
rence, Christianity  was  recognized  in  many  judicial  decisions  as 
a  part  of  the  English  law.  About  the  seventeenth  century  Hale 
stated  that  "Christianity  is  parcel  of  the  laws  of  England," 
(i  Ventr.  293,  3  Keb.  607).  In  1763  Blackstone  said  that 
*'  Christianity  is  part  of  the  laws  of  England,"  {Commentaries, 
IV,  59).  In  1767  Lord  Mansfield,  in  Evans'  case,  said  that  "the 
essential  principles  of  revealed  religion  are  part  of  the  common 
law."  As  a  consequence  of  these  decisions,  blasphemy  and  pro- 
fanity came  to  be  regarded  as  offenses  at  common  law. 

The  English  common  law  has  been  incorporated  more  or  less  fully 
into  the  law  of  every  state  except  Louisiana.  Consequently,  these 
English  decisions  have  furnished  precedents  for  the  American  deci- 
sions on  this  point.  For  example,  the  Supreme  Court  of  the  United 
States  declared  in  the  case  of  Vidal  v.  Girard's  Executors  (2  How.  127, 
198),  that  "it  is  also  said,  and  truly,  that  the  Christian  religion  is  a 
part  of  the  common  law  of  Pennsylvania."  In  the  case  of  the  Church 
of  the  Holy  Trinity  v.  U.  S.  (Oct.  Term,  1891,  U.  S.  Reports,  Vol.  143), 
the  decision  of  the  Supreme  Court,  prepared  by  Justice  Brewer,  re- 
cites many  facts  alleged  to  be  indications  that  this  is  a  Christian 
country,  and  then  concludes  as  follows:  —  "These,  and  many  other 
matters  which  might  be  noticed,  add  a  volume  of  unofficial  declara- 
tions to  the  mass  of  organic  utterances  that  this  is  a  Christian  nation." 

In  numerous  blasphemy  cases  similar  decisions  have  been  made,  as 
will  be  illustrated  in  the  two  following  cases  from  state  courts.  In 
New  York  in  The  People  v.  Ruggles  (8  Johns.  29,  294.  295),  Chancellor 
Kent  rendered  the  following  decision:  —  "The  people  of  this  state, 
in  common  with  the  people  of  this  country,  profess  the  general  doc- 
trines of  Christianity,  as  the  rule  of  their  faith  and  practice;  and  to 
scandalize  the  author  of  these  doctrines  is  not  only,  in  a  religious 
point  of  view,  extremely  impious,  but,  even  in  respect  to  the  obliga- 
tions due  to  society,  is  a  gross  violation  of  decency  and  good  order." 
In  Delaware  in  The  State  v.  Thomas  Jefferson  Chandler  (General 
Sessions,  May  Term,  1837,  Harrington's  Reports,  Vol.  2),  the  follow- 
ing assertion  was  made:  —  "We  know,  not  only  from  the  oaths  that 
are  administered  by  our  authority  to  witnesses  and  jurors,  but  from 
that  evidence  to  which  every  man  may  resort  beyond  these  walls,  that 
the  religion  of  the  people  of  Delaware  is  christian." 

*  Jefferson's  description  of  this  process  is  to  be  found  in  any  complete 
edition  of  his  writings.  A  brief  summary  of  it  is  given  in  The  Jeffersonian 
Cyclopedia,  edited  by  J.  P.  Foley,  New  York,  1900,  pp.  161-162. 


EVOLUTIVE  CRIME  AND   SOCIAL  READJUSTMENT  473 

It  is  interesting  to  note  that  some  of  these  judges  have  apparently 
had  qualms  of  conscience  over  these  decisions,  or  at  least  misgivings 
as  to  their  effect  upon  religious  freedom,  for  they  have  averred  that  in 
recognizing  Christianity  as  the  official  and  established  religion  they 
were  not  opposing  reUgious  tolerance  and  freedom.  Thus  in  Penn- 
sylvania in  Updegraph  v.  The  Commonwealth  (11  S.  and  R.  394,  400), 
the  court  spoke  as  follows:  —  "Christianity,  general  Christianity,  is, 
and  always  has  been,  apart  of  the  common  law  of  Pennsylvania;  .  .  . 
not  Christianity  with  an  established  church,  and  tithes,  and  spiritual 
courts;  but  Christianity  with  liberty  of  conscience  to  all  men."  In 
New  York  in  Lindenmuller  v.  The  People  (N.  Y.  Supreme  Court, 
February,  1861,  Barbour's  S.  C.  Rep.,  Vol.  z:^),  the  plaintiff  in  error 
had  been  convicted  of  violating  the  sabbath  law  by  giving  a  theatrical 
performance  on  Sunday.  The  conviction  was  sustained  and  in  render- 
ing its  decision  the  court  spoke  as  follows:  —  "Religious  tolerance  is 
entirely  consistent  with  a  recognized  religion.  Christianity  may  be 
conceded  to  be  the  established  religion,  to  the  qualified  extent  men- 
tioned, while  perfect  civil  and  political  equality,  with  freedom  of 
conscience  and  religious  preference,  is  secured  to  individuals  of  every 
other  creed  and  profession." 

Enough  decisions  have  been  cited  to  indicate  that  in  speaking 
of  this  country  as  a  "Christian"  nation  the  courts  have  not  in- 
tended merely  to  use  a  descriptive  phrase,  which  might  be  justi- 
fied on  the  ground  that  the  great  majority  of  the  inhabitants  are 
Christian.  On  the  contrary,  it  is  evident  that  they  have  fully 
intended  to  establish  Christianity  as  the  official,  national  religion, 
in  whose  favor  the  executive  and  legislative  branches  of  the 
government  may  discriminate  when  they  so  desire.  But  the 
courts  have  apparently  not  intended  to  establish  any  Christian 
church  as  the  official  state  church. 

The  Constitution  of  the  United  States  and  the  State  con- 
stitutions guarantee  religious  liberty.^  It  is,  therefore,  contrary 
to  the  spirit  if  not  to  the  letter  of  this  constitutional  provision 

1  The  first  amendment  to  the  Federal  Constitution  reads  as  follows:  — 

"Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of  speech, 
or  of  the  press;  or  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances." 

Article  I,  Section  3  of  the  New  York  State  Constitution  reads  in  part  as 
follows:  — 

"The  free  exercise  and  enjoyment  of  religious  profession  and  worship, 
without  discrimination  or  preference,  shall  forever  be  allowed  in  this  State 
to  all  mankind." 


474  CRIMINOLOGY 

for  the  executive,  the  legislative,  or  the  judicial  branch  of  the 
government  to  discriminate  in  any  way  in  favor  of  any  religion. 
Especially  grave  is  this  discrimination  when  the  courts  declare 
this  to  be  a  "Christian"  nation.  By  this  astonishing  piece 
of  affrontery  they  indirectly,  to  say  the  least,  violated  the  con- 
stitutional right  of  religious  freedom  which  it  is  their  special 
duty  to  uphold.  They  have  thereby  insulted  the  many  non- 
Christian  religious  citizens  and  the  irreligious  citizens  of  this 
country  who  should  vehemently  resent  this  gratuitous  insult.  ^ 

Unfortunately  it  is  true  that  in  nearly  every  country  in  the 
world  some  religion  is  officially  recognized  or  is  given  a  prefer- 
ence by  the  government.  But  there  can  be  the  least  excuse  for 
this  in  the  greatest  republic  in  the  world.  So  far  as  my  personal 
observation  extends,  the  French  government  is  the  only  demo- 
cratic govenmient  which  consistently  refrains  from  recognizing 
any  religion  as  the  official  or  national  religion. 

The  Laws  against  Blasphemy  and  Profanity 

The  way  in  which  religion  restricts  the  freedom  of  speech  is 
clearly  exemplified  in  the  laws  against  blasphemy.^  In  the 
days  when  it  was  generally  believed  that  the  blasphemous  utter- 
ances of  an  individual  would  bring  divine  punishment  not  only 

^  The  late  Justice  Brewer  of  the  U.  S.  Supreme  Court  repeatedly  misused 
the  great  power  and  influence  of  his  high  judicial  office  by  asserting  in  public 
decisions  and  private  utterances  that  this  is  a  "Christian"  nation,  as,  for 
example,  in  the  following  statement:  —  "It  is  in  that  sense  as  truly  a  Chris- 
tian nation  as  is  England  with  its  Established  Church,  or  as  is  Turkey  a 
Mohammedan  nation  with  the  Koran  as  its  officially  declared  sacred  book." 
(D.  J.  Brewer,  American  Citizenship,  New  York,  1909,  p.  21.) 

1  am  glad  to  be  able  to  say  that  a  Jewish  non-Christian  has  had  the  cour- 
age and  the  intelligence  to  make  a  forceful  and  convincing  reply  to  Brewer's 
implied  aspersions  upon  all  non-Christian  citizens  of  this  country.  (Isaac 
Hassler,  A  Reply  to  Justice  Brewer's  Lectures  "  The  United  States  a  Christian 
Nation"  Philadelphia,  1908.) 

2  Blasphemy  has  been  defined  by  an  American  legal  authority  as  follows: 
"Blasphemy  is  any  reproach,  oral  or  written,  wilfully  cast  upon  God, 

his  name,  attributes,  or  religion.  Any  words  calculated  and  designed  to 
impair  and  destroy  the  reverence,  respect,  and  confidence,  due  to  God  as 
the  creator,  governor,  and  judge  of  the  world,  such  as  a  denial  of  his  being 
or  providence,  or  any  profane  and  malicious  scoffing  at  the  Holy  Scriptures, 
exposing  them  to  contempt  and  ridicule,  or  any  other  declarations  which 
tend  to  subvert  religion  and  piety,  are  blasphemy.  Profanity  consists  in 
the  use  of  words  which  import  an  imprecation  of  future  divine  vengeance." 
(\V.  C.  Robinson,  Elementary  Law,  Boston,  1882,  pp.  298-299.) 


EVOLUTIVE  CRIME  AND  SOCIAL  READJUSTMENT  475 

upon  himself  but  upon  his  community  as  well,  there  seemed  to 
be  ample  social  justification  for  penalizing  blasphemy.  But 
the  doctrine  of  individual  responsibility  for  conduct  is  now 
firmly  established,  and  there  are  few  if  any  intelligent  persons 
who  believe  that  any  one  besides  the  blasphemer  himself  can 
suffer  for  his  sin.  Indeed,  some  of  the  most  devout  votaries  of 
theistic  religion  have  reached  the  conclusion  that  the  deity  can 
be  safely  left  alone  to  enforce  the  "divine"  law.^  To  the  im- 
partial and  unprejudiced  mind  of  the  scientist  and  of  g,ny  other 
person  who  is  undisturbed  by  any  theological  prepossessions 
it  appears  wholly  reasonable  to  assume  that,  if  the  deity  is  in- 
deed omnipotent,  as  is  alleged  by  his  devotees,  he  can  scarcely 
need  the  puny  assistance  of  man  in  performing  his  police  work. 
So  that  the  human  and  social  justification  for  the  suppression 
of  blasphemy  disappears. 

It  is  doubtless  true  that  profanity  has  frequently  been  penal- 
ized by  the  courts  partly  because  it  has  been  regarded  as  symp- 
tomatic of  excited  feelings  which  might  lead  to  acts  of  violence 
dangerous  to  other  persons.  But  while  a  court  may  be  justified 
in  penalizing  a  person  who  utters  sentiments  which  menace 
the  welfare  and  safety  of  others,  there  is  no  justification  for 
punishing  profanity  on  religious  grounds.  So  that  the  law 
should  provide  and  a  court  should  specify  that  in  such  a  case  a 
threat  is  being  penalized,  and  not  profanity. 

There  is  even  less  justification  when  a  court  punishes  pro- 
fanity partly  as  a  violation  of  ''good  taste."  In  such  a  case 
profanity  is  penalized  as  an  offense  against  the  persons  whose 
standard  of  taste  proscribes  profanity  as  being  a  form  of  ''bad 
taste."  Few  things  in  human  culture  are  more  indefinable  and 
more  mutable  than  standards  of  taste.  Consequently,  a  stand- 
ard of  taste  is  one  of  the  last  things  that  a  court  should  attempt 
to  enforce,  and  it  is  a  dangerous  abuse  of  its  power  when  it  does 
so.  So  that  while  profanity  may  very  well  be  in  bad  taste  under 
many  circumstances,  because  it  signifies  an  undue  lack  of  ap- 

'  For  example,  Patterson,  who  displays  a  profound  faith  in  a  "divine" 
law,  insists  that  it  is  not  the  function  of  man  to  enforce  this  law.  "The 
municipal  law  does  not  and  cannot,  and  it  would  be  impious  for  it  to  at- 
tempt to,  enforce  most  parts  of  the  divine  law,  and  it  can  only  punish  in 
an  imperfect  manner  the  violation  of  a  small  part  of  it."  (James  Patterson, 
Commentaries  on  the  Liberty  of  the  Subject  and  the  Laws  of  England  Relating 
to  the  Security  of  the  Person,  London,  1877,  Vol.  I,  p.  114.) 


476  CRIMINOLOGY 

preciation  for  the  feelings  of  others,  the  penal  law  is  not  the 
appropriate  agency  for  restraining  it. 

There  can  be  no  question  about  the  right  of  every  one  to  use 
as  expletives  any  words  he  chooses,  so  long  as  these  words  do 
not  imply  slanderous  statements  about  any  other  living  persons. 
As  a  matter  of  fact,  profanity  frequently  has  great  psychological 
value  in  that  it  furnishes  an  outlet  for  strong  feelings  which 
might  otherwise  be  manifested  in  an  injurious  fashion.  Com- 
monplace words  cannot  perform  this  function,  so  that  words 
purported  to  have  a  sacred  significance  must  be  used.  These 
words  possess  great  cathartic  value  in  furnishing  a  fairly  in- 
nocuous vent  for  strong  feelings. 

But  the  most  dangerous  feature  of  the  laws  against  blasphemy 
is  that  they  may  be  used  to  limit  the  freedom  of  speech  and  of 
belief  with  respect  to  questions  of  great  importance.  As  a 
matter  of  fact,  these  laws  have  been  invoked  more  or  less  fre- 
quently by  the  courts  to  limit  the  freedom  of  discussion  with 
respect  to  religious  and  so-called  religious  matters.  As  recently 
as  the  year  191 6  an  obsolete  law  was  revived  in  Connecticut 
for  the  purpose  of  prosecuting  and  convicting  a  man  who  had 
criticized  the  character  of  the  Hebrew  Jehovah  as  painted  in 
the  Old  Testament.^  Disrespectful  mention  of  God,  Jesus, 
and  other  alleged  supernatural  beings  is  prohibited  in  various 
parts  of  this  country,  in  spite  of  the  fact  that  these  beings  are 
reputed  to  be  strong  enough  to  defend  and  avenge  themselves. 
In  this  fashion  is  violated  the  fundamental  and  inalienable 
human  right  of  free  speech,  and  the  courts  are  furnished  the 
power  to  interfere,  if  they  so  desire,  with  the  spread  of  liberal 
ideas  and  the  refutation  of  archaic  beliefs. 


^  The  Slate  of  Connecticut  v.  Mochus.  The  defendant  was  prosecuted  in 
Waterbiiry,  Connecticut,  under  the  following  law  which  was  originally 
enacted  in  1642:  —  General  Statutes  of  Connecticut,  Section  1323  —  "Every 
person  who  shall  blaspheme  against  God,  either  of  the  persons  of  the  Holy 
Trinity,  the  Christian  religion,  or  the  Holy  Scriptures,  shall  be  fined  not 
more  than  $100  or  imprisoned  in  a  jail  not  more  than  one  year,  and  may 
also  be  bound  to  his  good  behavior."  A.  D.  1642-1821,  Revised,  188,  Sec- 
tion 1535. 

Under  this  "blue  law"  he  was  convicted  and  sentenced  in  August,  1916, 
to  serve  ten  days  in  jail  and  to  give  a  bond  of  $1,000  to  guarantee  good  be- 
havior for  six  months.  The  case  was  appealed  and  has  not  been  decided  at 
the  present  time  of  writing  (1917). 


EVOLUTIVE   CRIME   AND   SOCIAL  READJUSTMENT  477 

Even  in  England  where  the  right  of  free  speech  has  been 
carefully  safeguarded,  the  law  provides  that  any  one  "who 
having  been  educated  in  or  at  any  time  having  made  profession 
of,  the  Christian  religion  within  this  realm,  by  writing,  printing, 
teaching,  or  advised  speaking,  denies  the  Christian  religion 
to  be  true,  or  the  holy  scriptures  of  the  Old  and  New  Testament 
to  be  of  Divine  authority"  ^  is  guilty  of  a  misdemeanor.  Nor  is 
the  law  against  blasphemy  in  England  a  dead  letter,  as  is  pointed 
by  an  English  historian:  —  "It  was  commonly  supposed  that 
the  Blasphemy  laws,  though  unrepealed,  were  a  dead  letter. 
But  since  December,  1911,  half  a  dozen  persons  have  been 
imprisoned  for  this  offence."  ^ 

Sabbatarian  Legislation 

There  are  many  other  direct  or  indirect  violations  of  the  prin- 
ciple of  religious  freedom,  in  the  form  of  discriminations  in  favor 
of  religion  and  of  Christianity  in  particular  and  against  irreligion 
and  the  irreligious.  For  example,  in  the  New  York  penal  code 
disturbing  religious  meetings  is  made  a  special  crime,  it  is  for- 
bidden to  carry  on  horse  racing  within  two  miles  of  a  religious 
meeting  place,  it  is  forbidden  to  represent  the  "Divine  Person" 
by  living  characters,  etc.^  In  19 14  in  New  York  City  a  man  was 
sent  to  prison  for  six  months  because  he  disturbed  a  religious 
meeting  by  uttering  some  radical  sentiments,  though  he  did 
nothing  to  disturb  the  peace.  In  the  same  year  in  New  York 
City  another  man  was  sentenced  to  prison  for  one  year  because 
he  led  a  group  of  unemployed  men  into  a  church  in  search  of 
assistance.  Both  of  the  judges  who  imposed  these  sentences 
indicated  by  their  utterances  that  they  regarded  the  guilt  of 
these  offenders  as  greatly  exacerbated  by  the  fact  that  they  had 
invaded  churches,  and  that  consequently  they  were  increasing 
the  penalties  accordingly. 

Perhaps  the  most  flagrant  violation  of  religious  freedom  in 
this  country  is  in  the  form  of  Sabbatarian  legislation.  Many 
kinds  of  conduct  are  forbidden  on  Sunday.  For  example,  in 
the  New  York  penal  code  all  labor,  "  excepting  the  works  of  ne- 

^J.  F.  Stephen,  A  Digest  of  the  Criminal  Law,  London,  1904,  p.  127, 
Art.  181. 

2  J.  B.  Bury,  A  History  of  Freedom  of  Thought,  London,  1913,  p.  243. 
'  Article  186.    See  Cook's  Criminal  Code,  Albany,  1916. 


478  CRIMINOLOGY 

cessity  and  charity,"  is  prohibited  on  Sunday;  public  sports  are 
prohibited  on  Sunday;  theatrical  performances  are  prohibited 
on  Sunday;  barbering  is  prohibited  on  Sunday,  with  certain  ex- 
ceptions; etc.^ 

Now  it  goes  without  saying  that  a  day  of  rest  once  a  week,  if 
not  even  more  frequently,  is  desirable  for  every  one,  and  should 
be  guaranteed  by  the  law  to  all  persons  who  cannot  secure  it 
otherwise.  It  was  a  recognition  of  this  fact  that  led  to  the  wise 
French  law  of  the  repos  hebdomadaire  (weekly  rest)  enacted  in 
1906.^  But  it  is  not  essential  that  this  day  of  rest  should  come 
on  Sunday  for  all  persons.  Nor  is  it  necessary  to  forbid  the 
doing  of  anything  on  Sunday,  so  long  as  every  person  is  assured 
of  his  day  of  rest. 

In  this  country  a  recognition  of  the  need  of  a  day  of  rest  has 
doubtless  been  one  of  the  motives  back  of  Sabbatarian  legisla- 
tion. But  the  religious  motive  has  probably  been  much  more 
powerful.  This  is  revealed  both  by  the  pious  wording  of  the 
laws  and  also  by  their  nature.  If  the  day  of  rest  was  the  sole 
motive  of  the  legislation,  it  would  not  be  required  that  all  or  as 
many  as  possible  should  desist  from  work  on  Sunday.  If  the 
sole  motive  of  the  legislation  was  to  make  Sunday  a  day  of  rest 
and  recreation,  it  would  not  be  necessary  to  prohibit  public 
sports,  theatrical  performances,  etc.  In  fact,  these  activities 
constitute  a  valuable  addition  to  Sunday  as  a  day  of  rest  and 
recreation.  These  prohibitions  are,  as  a  matter  of  fact,  rem- 
iniscences of  taboos  imposed  upon  certain  days  for  magical  and 
religious  reasons,  from  one  of  which  days  Sunday  has  been 
derived.^  It  is  time  that  a  purely  secular  law  of  the  weekly  rest 
be  substituted  for  our  present  Hebraic  and  Christian  Sabbatarian 
legislation. 

Religious  Discrimination  in  Military  Conscription 

A  recent  instance  of  discrimination  in  favor  of  religion  and  the 
religious  against  the  irreUgious  is  to  be  found  in  the  "Selective 

*  Article  iq2. 

*  For  a  thoroughgoing  description  of  this  law,  see,  C.  Berthomieu,  Le 
repos  hebdomadaire,  Paris,  1914. 

'  For  a  scholarly  discussion  of  the  derivation  of  Sunday,  see,  H.  Webster, 
Rest  Days,  New  York,  1916.  See  also,  E.  Westermarck,  The  Origin  and 
Development  of  the  Moral  Ideas,  London,  1908,  Vol.  II,  pp.  286-289. 


EVOLUTIVE   CRIME  AND   SOCIAL  READJUSTMENT  479 

Draft  Law"  of  191 7.  In  this  law  it  is  provided  that  members  of 
"any  well-recognized  religious  sect  or  organization  organized 
and  existent  on  May  18,  191 7,  and  whose  then  existing  creed  or 
principles  forbade  its  members  to  participate  in  war  in  any  form 
and  whose  religious  convictions  are  against  war  or  participation 
therein,  in  accordance  with  the  creed  or  principles  of  said  re- 
ligious organization,"  should  be  exempted  from  military  service. 
(Quoted  in  the  New  York  Times,  July  15,  1917.) 

In  other  words,  the  religious  objectors  to  military  service  be- 
longing to  an  established  church  were  to  be  exempted,  while 
the  irreligious  objectors,  however  conscientious  they  might  be, 
and  the  religious  objectors  who  did  not  happen  to  belong  to  an 
organized  church  were  not  to  be  exempted.  While  it  is  very 
essential  at  a  time  of  great  national  peril  that  the  conscientious 
objectors  to  military  service  should  not  be  encouraged,  and  espe- 
cially that  the  shirkers  who  try  to  hide  under  the  cloak  of  con- 
scientious scruples  should  be  baffled;  it  is  nevertheless  grossly 
unjust  to  discriminate  in  favor  of  a  few  religious  sects.  It  would 
have  been  better  to  exempt  no  conscientious  objectors  than  to 
exempt  only  the  religious  objectors. 

The  draft  law  of  1917  also  exempted  regular  or  duly  ordained 
ministers  of  religion  and  students  of  divinity.  While  it  is  essen- 
tial to  exempt  workers  engaged  in  industries  necessary  to  the 
national  existence  and  the  successful  prosecution  of  the  war, 
the  priestly  class  is  one  of  the  least  needed  of  all  professions  at 
all  times  and  can  be  dispensed  with  most  easily  at  a  time  of 
national  stress  and  peril.  So  that  this  exemption  is  obviously  a 
discrimination  in  favor  of  religion. 

Sumptuary  and  Economic  Legislation 

There  are  comparatively  few  sumptuary  laws  in  any  civilized 
country  today.  Most  sumptuary  legislation  is  utterly  unjus- 
tifiable. The  only  possible  exceptions  are  the  prohibitions 
against  the  use  of  deleterious  substances,  such  as  alcohol,  the 
narcotic  and  hypnotic  drugs,  etc.,  which  unquestionably  are 
doing  human  beings  a  vast  amount  of  injury.  But  aside  from 
a  few  such  exceptions,  people  should  be  left  free  to  eat,  sleep, 
and  clothe  themselves  as  their  own  judgment  and  taste  dictate, 
and  not  according  to  the  dicta  of  legislators  and  judges. 


480  CRIMINOLOGY 

There  is  much  limitation  of  economic  freedom,  though  there 
is  great  difference  of  opinion  as  to  what  constitutes  economic 
freedom.  According  to  the  laissez  faire  school  economic  freedom 
consists  in  placing  no  restriction  whatsoever  upon  competition. 
It  is  the  application  of  this  principle  which,  in  a  large  measure, 
has  led  to  the  present  capitalistic  system.  According  to  the 
socialists  economic  freedom  can  be  attained  only  by  the  organiza- 
tion of  all  economic  activities  by  the  state,  so  that  each  individual 
will  be  given  an  equal  opportunity  with  all  others.  Neither  of 
these  forms  of  economic  freedom  exists  at  present.  So  that, 
whichever  view  we  choose  to  take,  we  have  reason  to  believe 
that  there  is  much  limitation  upon  economic  freedom. 

Inasmuch  as  it  is  very  difficult  to  define  economic  freedom,  it 
is  difficult  to  determine  what  limitations  upon  it  are  justifiable. 
The  most  that  I  can  say  here  is  that  freedom  in  the  economic 
world  can  in  all  probability  be  attained  and  maintained  most 
effectively  by  means  of  a  form  of  democracy  akin  to  that  in  the 
political  world.  At  any  rate,  there  is  much  reason  to  believe 
that  the  economic  freedom  of  the  laissez  faire  school  is  in  the  main 
a  spurious  form  of  freedom  which  leads  very  soon  to  some  of  the 
worst  forms  of  bondage.  So  that  repression,  or,  to  say  the  least, 
restriction,  of  such  things  as  speculation,  monopolies,  some  forms 
of  competition,  etc.,  is  probably  justifiable. 

Offenses  are  committed  in  connection  with  economic  move- 
ments which  are  justly  suppressed.  For  example,  in  1892 
Alexander  Berkman  tried  to  assassinate  Henry  C.  Frick,  head 
of  the  Carnegie  Steel  Company  in  Pittsburgh,  because  of  Frick's 
activities  in  attempting  to  defeat  the  Homestead  strike.  Berk- 
man's  intentions  probably  were  good,  but  his  methods  were  very 
reprehensible.  Consequently,  he  spent  about  fourteen  years  in 
prison  on  account  of  the  attempted  assassination.^ 

In  191 1  and  191 2  about  forty  labor  leaders  were  sent  to  prison 
for  dynamiting  a  large  amount  of  property  and  destroying  a 
number  of  lives  in  the  effort  to  injure  employers  against  whom 
they  had  grudges  because  they  maintained  an  open  shop  or  for 
some  other  reason.  Among  these  were  the  notorious  McNamara 
brothers  who  were  sent  to  prison  in  California  for  long  terms, 
J.  B.  McNamara  for  life  and  J.  J.  McNamara  for  fifteen  years, 

1  See,  for  his  own  account  of  this  act,  Alexander  Berkman,  Prison  Memoirs 
of  an  Anarchist,  New  York,  191 2. 


.  EVOLUTIVE   CRIME   AND   SOCIAL  READJUSTMENT  48 1 

for  blowing  up  the  Los  Angeles  Times  building  and  killing 
twenty-one  persons.^  It  is  diflScult  to  determine  whether  the 
McNamaras  were  genuine  evolutive  offenders  or  nothing  more 
than  common  criminals.  In  either  case,  severe  punishment  was 
the  only  kind  of  penal  treatment  which  could  be  justly  meted 
out  to  them. 

On  the  other  hand,  legislation,  court  injunctions,  and  police 
measures  have  frequently  been  used  to  prevent  workingmen  from 
striking,  and  to  check  other  economic  movements,  such  as 
socialism,  the  single  tax,  etc.  It  goes  without  saying  that  there 
can  be  no  justification  for  such  repression  when  these  movements 
are  being  carried  on  in  an  orderly  fashion. 

The  Law  Against  Suicide 

While  it  is  desirable  to  discourage  suicide  as  much  as  possible 
by  indirect  means,  there  can  be  no  possible  justification  for 
penalizing  any  one  for  attempting  to  destroy  his  own  life,  since 
there  could  be  no  right  more  fundamental  and  more  inalienable 
than  the  right  to  dispose  of  one's  own  life.  And  yet  suicide  is 
penalized  practically  everywhere.  For  example,  the  New  York 
penal  code  specifies  that  "every  person  guilty  of  attempting 
suicide  is  guilty  of  felony,  punishable  by  imprisonment  in  a 
state  prison  not  exceeding  two  years,  or  by  a  fine  not  exceeding 
one  thousand  dollars."    (Article  202.) 

The  punishment  of  attempted  suicide  is  based  in  large  part 
upon  the  theological  notion  that  only  God  has  the  right  to  take 
away  life  which  he  is  alleged  to  give.  But  it  is  also  partly  for 
the  prevention  of  suicide.  For  this  purpose  it  is  a  grossly  stupid 
measure.  It  can  obviously  be  of  no  avail  whatsoever  in  deterring 
any  one  so  desperate  as  to  wish  to  kill  himself.  It  may,  indeed, 
increase  the  number  of  suicides  by  driving  those  who  are  con- 
templating suicide  to  adopt  more  certain  methods  of  killing 
themselves  in  order  to  avoid  the  penalty  prescribed  for  those 
who  fail  in  the  attempt,  but  which  obviously  cannot  be  inflicted 
upon  those  who  succeed.  Punishment  may  sometimes  be  jus- 
tifiable for  trying  to  avoid  moral  obligations,  where  an  attempt 
at  suicide  was  obviously  for  that  purpose.  But  punishment  for 
suicide  itself  can  never  be  justified. 

^  See  W.  J.  Burns,  The  Masked  War,  New  York,  1913. 


482  CRIMINOLOGY 

1  do  not  mean  to  imply,  however,  that  society  does  not  have 
the  right  to  take  life,  as  in  capital  punishment,  or  to  endanger 
life,  as  by  means  of  military  conscription  in  time  of  war,  when 
the  safety  of  society  imperatively  demands  it.  It  goes  without 
saying  that  the  fundamental  right  of  the  individual  to  his  own 
life  must  give  way  in  some  cases  to  the  welfare  of  society. 

Repression  in  Matters  of  Sex  and  Reproduction 

There  is  much  limitation  of  freedom  in  sex  relations.  This  is 
well  illustrated  in  the  laws  against  fornication,  adultery,  bigamy, 
etc.,  and  in  the  laws  enforcing  the  existing  type  of  marriage,  and 
restricting  and  sometimes  absolutely  prohibiting  divorce. 
Freedom  in  matters  of  reproduction  is  also  limited.  Rarely  if 
ever  is  the  attempt  made  to  force  reproduction.  But  throughout 
a  large  part  of  the  civilized  world  there  is  repressive  legislation 
against  the  use  of  measures  for  the  prevention  and  control  of 
reproduction.  Furthermore,  the  public  discussion  of  sex  is  pro- 
hibited to  a  large  extent  by  the  laws  against  obscenity. 

There  is  not  the  space  to  discuss  at  length  these  restrictions 
in  matters  of  sex  and  reproduction.  Suffice  it  to  say  that  sex 
relations  have  varied  greatly  in  the  past  and  are  changing  con- 
siderably at  the  present  time.  There  is  ample  evidence  that 
artificial  regulation  of  reproduction  is  greatly  needed  by  society, 
because  of  the  danger  of  relative  over-population.^  So  that 
there  is  no  justification  for  most  of  these  penal  restrictions,  as, 
for  example,  the  laws  against  fornication,  adultery,  and  birth 
control.  Furthermore,  while  some  forms  of  obscenity  may 
violate  good  taste,  the  laws  against  obscenity  grossly  violate  the 
freedom  of  speech,  and  have  frequently  been  used  to  suppress 
both  works  of  art  and  scientific  treatises  which  deal  with  sex.^ 

1 1  have  presented  some  of  this  evidence  in  my  Poverty  attd  Social  Progress, 
New  York,  1916.  See  especially  Chapter  XIII  entitled  "Population  and 
Poverty." 

2  Theodore  Schroeder  has  described  many  instances  of  such  suppression 
in  his  "Obscene"  Literature  and  Constitutional  Law,  New  York,  191 1.  He 
points  out  that  the  censorship  which  has  arisen  under  the  laws  against  ob- 
scenity has  prevented  the  publication  of  many  useful  scientific  books.  "The 
most  injurious  part  of  this  censorship,  however,  lies  not  in  the  things  that 
have  been  suppressed,  as  against  the  venturesome  few  who  dare  to  take  a 
chance  on  the  censorship,  but  rather  in  the  innumerable  books  that  have 
remained  unwritten  because  modest  and  wise  scientists  do  not  care  to  spend 


evolutive  crime  and  social  readjustment         483 

The  Conservatism  of  the  Human  Mind 

Before  closing  this  chapter- 1  wish  to  discuss  briefly  the  ques- 
tion as  to  the  extent  to  which  evolutive  crime  can  be  lessened 
and  eliminated.  Freedom  of  speech  and  of  publication  would 
eliminate  many  evolutive  crimes,  for  a  large  proportion  of  these 
crimes  are  due  to  the  restrictions  upon  freedom  of  speech.  It  is 
conceivable  that  such  freedom  will  become  possible,  with  the 
few  exceptions  which  have  been  mentioned,  namely,  the  pro- 
hibitions against  slander  and  libel,  against  fraudulent  state- 
ments, and  against  direct  incitements  to  crime.  It  would  then 
be  possible  to  propose,  discuss,  and  advocate  any  changes  which 
seemed  desirable  to  any  one,  and  thus  prepare  the  way  in  a 
peaceful  manner  for  their  ultimate  adoption  or  rejection  as 
seemed  best  to  the  majority. 

But  while  freedom  of  speech  will  doubtless  increase  greatly 
with  the  progress  of  civilization,  it  is  not  certain  that  it  will 
ever  escape  a  limitation  which  arises  out  of  a  well  known  human 
trait.  It  is  unfortunately  true  that  the  great  majority,  owing  to 
mental  inertia,  are  unwilling  to  expend  the  effort  necessary  to 
assimilate  new  ideas,  but,  on  the  contrary,  display  a  passionate 
devotion  to  generally  accepted  ideas.  Consequently,  it  is  to  be 
feared  that  those  who  propose  and  advocate  new  ideas  will 
always  suffer  a  certain  amount  of  persecution  at  the  hands  of 
the  majority.  It  is  possible  that  all  legal  restrictions  upon  free 
speech  will  disappear  eventually.  But  extra-legal  restrictions 
will  doubtless  always  remain  in  the  forms  of  the  persecution  of 
and  discrimination  against  those  who  advocate  new  ideas  and 
agitate  for  changes  in  the  organization  of  society. 

The  Prevention  of  Evolutive  Crime 

The  prevention  of  evolutive  crime  depends  mainly  upon  the 
development  of  a  political,  social,  and  economic  organization 
which  is  sufficiently  flexible  to  make  changes  easy  without  at 
the  same  time  leading  to  disorder.     Evolutive  crime  will  be 

their  time  in  taking  even  a  little  chance  of  coming  into  conflict  with  an  un- 
certain statute,  arbitrarily  administered  by  laymen  to  the  medical  profes- 
sion, in  which  profession  are  many  not  over-wise  and  sometimes  fanatical 
zealots  in  the  interest  of  that  asceticism  which  is  the  crowning  evil  of  the 
theology  of  sex."    {Op.  cit.,  p.  73.) 


484  CRIMINOLOGY 

eliminated  to  the  extent  that  such  an  organization  comes  into 
being.  It  is  doubtful  if  such  an  organization  can  ever  be  at- 
tained in  an  ideal  form.  But  human  society  seems  to  be  ap- 
proximating it  more  and  more  closely  with  the  progress  of 
civilization. 

At  any  rate,  this  is  true  of  political  organization.  There  has 
been  a  distinct  tendency  in  this  direction  through  the  develop- 
ment of  constitutional  and  democratic  government.  A  de- 
mocracy is  bound  to  uphold,  in  the  long  run,  the  rights  of  the 
individual,  for  the  source  of  authority  in  a  democracy  is,  in  the 
last  analysis,  in  the  individuals  who  constitute  the  democracy. 
Consequently,  the  constitutions  of  all  democratic  states  guar- 
antee more  or  less  fully  the  rights  of  free  speech,  of  free  press,  of 
freedom  of  belief,  and  of  free  assemblage.  Unfortunately  these 
rights  are  frequently  violated  in  practise. 

But  even  the  modem  democratic,  constitutional  government  is 
not  so  flexible  as  it  might  be,  and  as  would  be  desirable.  This  is 
lamentably  true  in  this  country  which  is  supposed  to  lead  the 
world  in  its  democratic  and  repubUcan  institutions.  It  is 
necessary  merely  to  refer  to  the  extreme  difficulty  of  amending 
the  United  States  Constitution  to  reveal  the  degree  of  rigidity  in 
our  political  system.  In  fact,  this  difficulty  alone  is  to  a  large 
extent  at  the  bottom  of  the  rigidity  in  our  governmental  system, 
for  if  it  were  easier  to  amend  the  Constitution  the  whole  system 
would  become  more  flexible.  ^ 

Partly  as  a  result  of  the  rigidity  of  the  Constitution,  as  well  as 
because  of  the  great  powers  given  to  them  by  the  Constitution, 

1  The  rigidity  and  the  consequent  dangers  of  our  constitutionaJ  system 
are  periodically  revealed  in  our  presidential  elections.  It  is  a  notorious  fact 
that  in  two  elections,  in  1876  and  in  1888,  the  candidates  who  received  a 
plurality  of  the  popular  vote  did  not  receive  a  majority  of  the  votes  cast 
in  the  electoral  college.  Consequently,  the  minority  candidates  were  seated 
in  the  presidential  chair.  In  1876,  this  injustice  nearly  led  to  civil  war,  and 
there  is  danger  of  this  happening  after  each  election.  In  1916  the  candidate 
who  received  a  plurality  of  the  popular  vote  nearly  failed  to  receive  a  ma- 
jority of  the  votes  cast  in  the  electoral  college.  And  yet  it  is  almost  im- 
possible to  change  the  method  of  electing  the  president  because  of  the  dif- 
ficulty of  amending  the  Constitution. 

The  same  difiiculty  stands  in  the  way  of  many  other  political  changes 
which  should  be  made  because  of  the  great  transformation  in  economic 
and  social  conditions  which  has  taken  place  since  the  Constitution  was 
adopted. 


EVOLUTIVE  CRIME  AND  SOCIAL  READJUSTMENT  485 

the  courts  have  acquired  an  enormous  amount  of  power  in  this 
country.  By  construing  it  liberally  they  have  sometimes  re- 
lieved somewhat  the  rigidity  of  the  Constitution.  But  be- 
cause of  the  nature  of  the  training  and  the  class  consciousness 
of  most  of  the  judges  they  have  also  served  as  serious  obstacles 
to  change.^  The  courts  have  frequently  used  their  power 
politically,  in  effect,  to  legislate.  In  many  cases  their  attitude 
has  been  reactionary,  and  has  been  manifestly  in  the  interest  of 
the  upper  classes.  These  facts  doubtless  account  for  the  recent 
agitation  to  check  the  courts  by  means  of  the  popular  recall  of 
judicial  decisions  and  of  judges.  It  is  indeed  dangerous  to  a 
country  when  its  courts  acquire  so  great  a  power,  and  such  a 
situation  contains  within  it  the  seeds  of  class  conflict  and  civil 
strife  which  may  become  widespread.^ 

^  Schofield  has  furnished  a  scholarly  description  of  the  development  of 
the  constitutional  right  of  the  freedom  of  the  press  in  this  country.  (H.  Scho- 
field, Freedom  of  the  Press  in  ike  United  States,  in  the  Papers  and  Proceed- 
ings of  the  Am.  Sociological  Society,  Vol.  IX,  Chicago,  1915,  pp.  67-116.) 

But  he  points  out  also  how  this  right  has  been  unlawfully  restricted  by 
the  courts  in  the  following  words:  — 

"The  constitutional  declarations  of  liberty  of  the  press  are  original  works 
of  the  American  people  in  the  sphere  of  law  and  government.  Their  chief 
practical  bulwark  always  has  been  the  overthrow  of  the  Federalist  party 
because  of  the  Sedition  act  of  1798.  As  guardians  and  expounders  of  the 
declarations  the  courts  are  a  failure  up  to  date.  They  cannot  be  a  success 
until  judges  get  rid  of  the  notion  that  the  declarations  are  only  declaratory 
of  the  anti-republican  English  common  law  of  the  days  of  Blackstone,  Lord 
Mansfield,  and  Lord  Kenyon,  only  previous  censorship  of  publications  on 
matters  of  public  concern,  leaving  untouched  the  English  common  law  of 
seditious,  blasphemous,  defamatory,  obscene,  and  immoral  libel.  The  judge- 
made  liberty  of  the  press  to  publish  defamatory  falsehood  on  matters  of 
public  concern  is  unauthorized  judicial  legislation  destructive  of  men's 
reputations  and  property,  inviting  and  encouraging  the  owners  and  editors 
of  newspapers  and  periodicals  to  found  their  educational  power  on  false- 
hood, whereas  the  declarations  require  them  to  found  it  on  truth,  except 
when  the  legislature  sees  fit  to  remove  the  restraint  of  truth.  And  the  judge- 
made  law  of  contempt  of  court  for  publications  censuring  judges  is  simply 
intolerable  in  a  land  of  equality  before  the  law  where  judges  are  no  more 
important  to  the  universe  than  executives  and  legislators."  {Op.  cit., 
pp.  114-115-) 

2  Cf.  Brooks  Adams,  The  Theory  of  Social  Revolutions,  New  York,  1913. 
This  writer  states  the  theory  that  when  courts  become  political  and  legislate 
the  people  lose  faith  in  them  and  may  ignore  or  change  them.  This  explains 
the  Terror  in  France  when  the  party  in  power  took  the  judicial  function 
into  its  own  hands  because  it  distrusted  the  courts.    The  courts  have  been 


486  CRIMINOLOGY 

I  have  not  the  space  to  describe  here  all  of  the  causes  of 
rigidity  in  our  social  organization.  There  is  reason  to  believe 
that  the  prevailing  economic  system  presents  much  opposition 
to  change.  The  capitalist  class  which  is  now  predominant 
stands  in  the  way  of  many  changes  which  would  be  to  the 
interest  of  the  vast  majority  of  human  beings.  As  the  masses 
become  better  educated  and  more  self-conscious,  they  will 
become  more  restless  and  will  resist  more  and  more  the  domina- 
tion of  the  capitalist  class.  Consequently,  rigidity  in  the 
economic  as  well  as  in  the  political  system  is  very  likely  to  give 
rise  to  disorder  and  bloody  strife.  Furthermore,  religion  and 
archaic  moral  standards  always  stand  in  the  way  of  change. 

At  the  same  time,  we  must  not  forget  what  I  have  already 
pointed  out,  namely,  that  at  least  a  small  amount  of  rigidity 
in  our  social  system  must  always  be  retained  for  several  reasons. 
In  the  first  place,  it  is  needed  to  conserve  the  achievements  of 
the  past.  In  the  second  place,  it  gives  enough  stability  to  the 
government  to  prevent  frequent  or  continuous  disorder.  In 
the  third  place,  it  acts  as  a  check  upon  foolish  and  ill-advized 
changes. 

But  rarely  ever  is  there  too  little  rigidity  to  accomplish  the 
above-mentioned  functions.  Indeed,  the  tendency  is  almost 
invariably  in  the  opposite  direction.  This  is  due  to  certain 
strongly  marked  traits  of  human  nature.  In  the  first  place,  it 
is  due  to  the  general  conservative  tendency  of  the  human  mind, 
owing  largely  to  the  mental  inertia  which  dislikes  and  resists 
change.  In  the  second  place,  it  is  due  to  the  fact  that  for  most 
persons  symbols  acquire  an  exaggerated  importance,  while  the 
realities  for  which  they  once  stood  are  lost  sight  of.  Conse- 
quently, the  majority  of  persons  are  constantly  defending  old 
objects  which  have  acquired  symbolic  significance  but  which 
may  no  longer  have  any  real  value,  while  they  oppose  new 
objects  which  may  have  a  genuine  value. 

and  are  political  in  this  country,  and  as  the  representatives  of  a  capitalist 
class  which  seems  incapable  of  readjusting  itself  to  changed  conditions  may 
precipitate  a  revolution. 

As  is  well  indicated  by  Adams,  the  French  Revolution  is  an  object  lesson 
which  should  serve  as  a  warning.  If  the  rulers  of  France  had  been  willing 
to  yield,  the  Bloody  Terror  would  not  have  taken  place,  and  the  Revolu- 
tionary tribunals  could  never  have  bathed  the  soil  of  France  with  the  blood 
of  thousands  of  political  offenders,  the  victims  of  the  guillotine. 


EVOLUTIVE  CRIME  AND  SOCIAL  READJUSTMENT  487 

So  that  these  mental  traits  should  be  restrained  rather  than 
encouraged.  The  most  valuable  disciplinary  measures  can  be 
applied  during  the  rearing  and  education  of  the  young.  I 
cannot  outline  a  complete  system  here.  Suffice  it  to  say  that 
by  removing  as  far  as  possible  the  formalistic  element  in  the 
educational  system  the  effects  of  these  mental  traits  can  be 
counteracted  to  a  large  extent.  Among  the  reforms  needed  are 
the  abolition  of  the  training  in  formal  courtesy  and  politeness 
in  the  home/  pedagogical  methods  in  the  schools  which  will 
stimulate  the  pupils  to  think  for  themselves,  academic  freedom 
in  the  colleges  and  universities,  etc. 

Evolutive  Crime  and  Democracy 

The  discussion  in  this  chapter  reveals  the  significance  of 
evolutive  and  political  crimes  in  relation  to  social  readjustment. 
It  is  evident  that  these  crimes  manifest  the  presence  of  serious 
problems  of  readjustment  in  any  social  system.  But  they  are 
of  peculiar  significance  in  any  democratic  system,  because  in  a 
democracy  the  rights  and  interests  of  the  individuals  who  con- 
stitute the  democracy  are  of  paramount  importance.  That  is 
why  I  have  emphasized  their  significance  in  this  country. 

In  any  country  the  number  of  political  crimes  will  depend 
in  part  upon  the  extent  to  which  its  government  fails  to  win  the 
loyal  support  of  the  inhabitants.  If  the  government  meets  the 
ideals  of  the  people,  there  will  be  few  political  crimes.  If  the 
government  falls  far  short  of  these  ideals,  the  number  of  these 
offenses  will  greatly  increase.  In  this  country  the  governmental 
system  has  attained  to  the  political  ideals  of  the  people  more 
nearly  probably  than  in  most  countries.  But  even  in  this  coun- 
try it  has  failed  in  many  important  respects  to  fulfill  the  demo- 
cratic ideals  of  its  citizens.  So  that  all  of  the  movements  towards 
a  more  thoroughgoing  political  democracy  are  of  the  utmost 
importance  in  this  connection.  Among  these  are  the  movements 
for  making  the  federal  constitution  more  amendable,  for  placing 
salutary  restraints  upon  the  power  of  the  courts,  for  proportional 
representation,  for  the  popular  recall,  for  the  initiative  and 

^  It  goes  without  saying  that  the  training  in  genuine  courtesy  should  be 
retained  and  strengthened.  (The  distinction  between  formal  and  genuine 
courtesy  is  pointed  out  in  Chapter  XIV.) 


488  CRIMINOLOGY 

referendum,  for  universal  suffrage,  and  many  other  movements 
which  I  cannot  describe  here. 

For  the  same  reasons  are  of  importance  the  measures  for 
greater  freedom  and  equality  in  the  forms  of  social  organization 
outside  of  the  political  system,  in  matters  of  morals,  and  in  the 
economic  world.  In  fact,  the  movements  towards  an  industrial 
democracy  are  perhaps  of  the  most  fundamental  importance 
in  this  connection.^ 

*  I  have  described  briefly  the  movements  towards  political  and  industrial 
democracy  in  my  Poverty  and  Social  Progress.  See  especially  Chapters 
XXVIII  and  XXIX  entitled  "Industrial  Democracy"  and  "Political  Re- 
organization and  the  Democratic  State." 


CHAPTER  XXX 
THE  PREVENTION  OF  CRIME 

Changes  in  the  nature  and  extent  of  crime  —  The  prevention  of  crime  de- 
pendent upon  the  prevention  of  other  social  evils  —  Individual  and 
social  criminogenic  factors  —  The  normal  life  as  a  preventive  of  crime. 

Crime  as  a  social  phenomenon  will  continue  to  change  as 
long  as  society  changes.  These  changes  will  be  both  in  the 
nature  and  extent  of  crime.  New  social  conditions  create  new 
occasions  for  conflict  between  individual  and  social  interests, 
while  obsolete  causes  of  conflict  disappear  with  changing  condi- 
tions. The  increase  or  decrease  of  crime  therefore  depends 
upon  the  proportion  between  the  new  and  the  old  causes  of 
crime. 

While  civilization  has  destroyed  many  causes  of  crime,  the 
advance  of  civilization  has  created  some  new  occasions  for 
conflict,  and  has  therefore  increased  crime  in  some  ways,  though 
it  is  impossible  to  ascertain  whether  it  has  increased  it  on  the 
whole.  It  is  possible  that  civilization  will  continue  to  increase 
crime  for  a  time.  For  example,  the  tremendous  growth  of  cities 
in  modern  times  has  been  a  powerful  factor  for  the  increase  of 
crime,  and  urban  growth  will  doubtless  continue  for  a  time 
at  least.  The  continual  rise  of  moral  standards  will  always  be 
adding  new  forms  of  conduct  to  the  list  of  crimes,  though  it 
will  also  be  removing  other  forms  of  conduct  hitherto  stig- 
matized as  criminal  in  the  penal  code. 

The  diminution  of  crime  will  depend  somewhat  upon  the 
growth  of  population  and  the  consequent  bitterness  of  the 
struggle  for  existence.  If  population  increases  too  rapidly, 
this  struggle  will  be  intensified,  and  there  can  be  little  hope  of  a 
decrease  of  crime.  But  if  the  growth  of  population  is  regulated, 
so  that  the  population  will  not  increase  too  rapidly,  the  con- 
ditions of  human  existence  will  be  ameliorated,  and  crime  will 
probably  diminish.  This  fact  indicates  the  supreme  importance 
for  the  prevention  of  crime  of  the  intelligent  use  of  birth  control 


490  CRIMINOLOGY 

measures,  which  are  now  prohibited  in  many  communities  by 
stupid  and  brutal  laws.^ 

Crime  can  never  be  entirely  abolished.  However  ideal  social 
conditions  may  become,  certain  human  traits  which  give  rise  to 
anti-social  acts  can  never  be  eradicated.  Among  these  traits 
are  selfishness,  greed,  anger,  jealousy,  vindictiveness,  envy,  etc. 

It  is  nevertheless  worth  while  to  consider  the  problem  of  the 
prevention  of  crime.  Economic  and  political  reorganization 
will  doubtless  lessen  crime  in  the  long  run.  If  a  socialistic  scheme 
of  social  organization  proves  successful,  it  will  obviate  many  of 
the  crimes  against  property.  An  increase  in  the  eflSciency  of 
government  will  prevent  some  of  the  crimes  against  the  person. 
But  even  if  no  thoroughgoing  reorganization  of  society  ever 
takes  place,  there  will  doubtless  be  a  certain  amount  of  improve- 
ment in  economic  and  political  conditions  which  will  diminish 
crime  somewhat.  The  egregious  inefficiency  of  the  existing 
economic  and  political  system  will  be  remedied  in  part,  and  will 
thus  render  more  effective  the  methods  of  dealing  with  crime. 

The  prevention  of  crime  is  dependent  almost  entirely  upon 
the  prevention  of  other  social  evils,  so  that  it  is  hardly  possible 
to  discuss  it  apart  from  those  evils.  For  example,  a  program 
for  the  prevention  of  poverty  involves  a  program  for  the  pre- 
vention of  many  of  the  social  evils  which  give  rise  to  crime, 
because  crime  is  closely  bound  up  in  its  causation  with  poverty 
and  its  attendant  evils.  It  is,  therefore^  impossible  to  devize  a 
special  program  for  the  prevention  of  crime,  and  I  shall  merely 
point  out  how  its  prevention  is  related  to  the  prevention  of  these 
other  evils  and  to  the  reorganization  of  society  in  general. 

In  the  chapter  on  the  economic  basis  of  crime  I  have  shown 
how"  poverty  and  other  evil  features  of  the  present  economic 
organization  of  society  give  rise  to  crime.  The  instability  of 
the  existing  economic  organization  is  illustrated  by  the  trade 
cycle  which  causes  a  vast  amount  of  unemployment  and  violent 
fluctuations  in  prices  and  wages.  In  this  fashion  the  funda- 
mental material  basis  of  existence  of  a  large  part  of  society  is 
rendered  uncertain,  and  a  good  deal  of  economic  pressure  to 
commit  criminal  acts  is  created.  The  excessive  inequality  in 
the  distribution  of  wealth  is  reflected  in  the  great  disparity 
between  the  criminality  of  the  poor  and  of  the  wealthy  classes. 
^  See  Chapter  V. 


THE  PREVENTION   OF   CRIME  49 1 

This  economic  pressure  also  acts  upon  many  persons  who 
are  not  destitute,  but  who  desire  a  higher  standard  of  living. 
Many  of  the  weaker  individuals,  and  some  of  the  stronger  ones 
as  well,  yield  to  the  temptation  to  commit  criminal  acts  in  order 
to  attain  their  desires.  All  of  these  facts  indicate  that  the  pre- 
vention of  crime  does  not  depend  upon  special  measures  for  the 
abolition  of  its  specific  causes,  but  upon  a  more  or  less  thorough 
reorganization  of  the  economic  system. 

At  the  same  time  our  comprehensive  survey  of  the  causes  of 
crime  has  indicated  how  essential  it  is  in  the  study  of  the  etiology 
of  crime  to  keep  in  mind  the  individual  factors,  as  well  as  the 
economic  and  other  social  factors.  Many  writers  have  com- 
mitted the  grave  error  of  going  to  the  one  or  to  the  other  of  these 
two  extremes  in  formulating  their  theories.  Among  those  who 
have  laid  excessive  emphasis  upon  the  economic  factors  are  the 
socialists  who  have  attributed  most  crimes  to  the  economic 
organization  of  society,  and  have  contended  that  under  a  social- 
ist organization  there  would  be  very  little  crime.  In  similar 
fashion,  the  single  taxers  have  blamed  most  crimes  upon  the 
present  economic  organization,  and  have  asserted  that  the  single 
tax  would  prevent  most  of  them.  Some  of  the  anarchists  have 
taken  a  similar  view  with  respect  to  the  present  situation,  but 
have  contended  that  the  abolition  of  all  political  organization 
would  be  the  most  effective  preventive  of  crime.  A  number  of 
sentimentalists  without  any  definite  program  have  attributed 
most  crimes  to  economic  factors  because  they  have  been  unwill- 
ing to  blame  them  upon  the  criminals  themselves. 

On  the  other  hand,  there  have  been  many  persons  who  have 
given  excessive  weight  to  the  individual  factors  in  the  causation 
of  crime.  Among  these  have  been  some  religious  writers  who 
have  apparently  wanted  to  emphasize  the  sinfulness  and  personal 
responsibility  of  criminals  because  they  believe  in  the  existence 
of  a  free  will.  But  probably  the  majority  of  those  who  have 
taken  this  view  have  done  so  for  conservative  reasons,  because 
they  did  not  want  to  blame  most  crimes  upon  the  existing 
order,  which  they  want  to  preserve. 

There  have  also  been  a  few  criminal  anthropologists  and  psy- 
chiatrists who  have  become  so  obsessed  with  the  pathological 
and  abnormal  traits  of  the  criminal  class  that  they  have  been 
able  to  see  few  of  the  factors  outside  of  the  individuals.    They 


492  CRIMINOLOGY 

have  therefore  given  undue  weight  to  the  individual  factors 
for  crime. 

Excessive  emphasis  upon  the  individual  factors  in  criminality 
has  led  some  persons  to  the  belief  that  eugenic  measures  can 
prevent  crime  entirely  or  in  large  part.  These  measures  may 
eliminate  some  of  the  feebleminded  and  psychopathic  criminals. 
But  it  is  obvious  that  it  cannot  remove  the  powerful  crimino- 
genic factors  in  the  environment. 

In  the  last  analysis,  it  may  be  said  that  crime  will  disappear 
to  the  extent  to  which  the  normal  life  becomes  possible  for  man- 
kind. By  the  normal  life  I  mean  the  spontaneous  expression  of 
human  nature.  In  any  organized  society  this  spontaneity  must 
be  limited  by  at  least  a  small  amount  of  social  control.  But  in 
the  existing  organization  of  society  this  spontaneity  is  limited 
far  more  than  is  necessary  for  social  welfare. 

The  prevention  of  poverty  and  other  economic  evils,  and  the 
abolition  of  the  restrictions  imposed  by  institutionalized  religion, 
conventional  morality,  and  antiquated  repressive  laws,  would 
increase  greatly  the  scope  of  the  normal  life  for  human  beings, 
and  would  obviate  to  a  corresponding  degree  the  occasions  for 
anti-social  conduct.  So  that  the  great  forces  of  science  and  of 
statesmanship  in  our  civilization  should  be  directed  towards 
attaining  the  highest  goal  of  social  progress  which  will  render  the 
normal  life  more  feasible  for  all  of  mankind. 

Hence  it  is  that  the  problem  of  crime  is  a  problem  of  human 
freedom  as  well  as  of  repression.  It  is  to  a  considerable  extent 
a  problem  of  liberating  mankind  from  the  bonds  which  fetter 
body  and  mind  and  which  interfere  with  the  development  of  a 
full  and  well-rounded  human  personality. 


APPENDIX  A 
PRICES  OF  CEREALS  AND  CRIMES  AGAINST  PROPERTY 


The  charts  on  pages  72,  74,  and  76,  are  plotted  from  the  following 


tables: 


England  and  Wales  ^ 


Crimes  against  Properly 


Years 

Price  of  Wheat 

witi 

hout  Violence  to  100,000 

{Quarter) 

of  the  Population 

sh. 

d. 

1858 

44 

2 

439 

i8S9 

43 

10 

399                          . 

i860 

53 

3 

392 

i86i 

55 

4 

415 

1862 

55 

5 

433 

1863 

44 

0 

392 

1864 

40 

2 

365                        ;    ■ 

Average 

405                                                                                        :            ■         : 

France  * 

Number 

of  Persons  Convicted  of  Crimes 

Years 

Average  Price  of 

a 

against  Property  (to  1,000  of 

Hectolitre 

of  Wheat 

Population) 

fr- 

c. 

1850 

14 

32 

14.058 

1851 

14 

48 

14.678 

1852 

16 

75 

16.217 

1853 

22 

39 

16.652 

1854 

28 

82 

20 . 442 

185s 

29 

32 

19.223 

1856 

30 

75 

18.222 

1857 

24 

37 

17.218 

1858 

16 

75 

15-437 

1859 

16 

75 

14  655 

i860 

20 

24 

15-707 

1861 

24 

55 

16.518 

1862 

23 

24 

16.742 

1863 

19 

78 

15-309 

*  Rearranged  and  adapted  from  G.  von  Mayr,  Statistik  der  gerichtlichen 
Polizei  im  Konigreiche  Bayern  und  in  einigen  anderen  LSndern,  Munich, 
1867;  and  W.  A.  Bonger,  Criminality  and  Economic  Conditions,  Boston, 
1916,  pp.  43-44- 

*  A.  Come,  Essai  sur  la  criminaliti,  in  the  Jour,  des  Economistes,  Jan., 
1868,  p.  81. 


494  APPENDIX  A 

Russia  ^ 


Convictions  for  Theft  to 

Ratio  of  Cereal 

Years 

100,000  cf  the 

Price  of  a" 

Pud" 

Crop  to  Average  Crop  of 

Population 

of  Rye 

in  Kopecks 

25  Years  {  =  100) 

1874 

76 

75 

105 

187s 

77 

73 

90 

1876 

78 

76 

95 

1877 

86 

80 

103 

1878 

95 

76 

ic6 

1879 

90 

86 

93 

1880 

104 

99 

87 

1881 

103 

129 

105 

Average  1874-81 

89 

87 

1884 

45 

90 

108 

188s 

46 

77 

90 

1886 

44 

74 

100 

1887 

45 

67 

114 

1888 

43 

65 

108 

1889 

43 

70 

83 

1890 

46 

68 

97 

1891 

52 

129 

73 

1892 

52 

89 

87. 

1893 

50 

61 

104 

1894 

50 

50 

121 

Average  i884-g4 

47 

76 

^  E.  Tamowski,  La  delinquenza  e  la  vita  sociale  in  Russia,  in  the  Rivista 
Italiana  di  sociologia,  July,  1898,  p.  497. 


APPENDIX  B 
A  BIOMETRIC  STUDY  OF  THE  ENGLISH  CONVICT 

In  1913  was  published  "The  English  Convict"  by  Charles  Goring, 
Deputy  Medical  Officer  of  H.  M.  Prison,  Parkhurst.  This  is  a  report 
of  a  statistical  study  of  three  thousand  convicts  in  the  English  prisons. 
I  shall  give  a  brief  summary  of  the  conclusions  of  this  report  because 
of  the  light  they  throw  upon  the  traits  of  the  criminal. 

Before  beginning  this  summary  I  shall  refer  to  one  feature  of  Dr. 
Goring's  report  which  mars  it  throughout.  The  first  section  is  en- 
titled "The  Superstition  of  Criminology."  It  appears  that  this 
superstition  is,  according  to  Dr.  Goring,  a  belief  in  a  distinct  criminal 
type.  He  thinks  that  this  belief  has  been  widespread  among  crim- 
inologists up  to  the  present  day,  and  that  Lombroso  is  largely  respon- 
sible for  this  belief.  In  order,  therefore,  to  indicate  the  nature  of  this 
alleged  belief,  he  attempts  to  state  Lombroso 's  theory  as  he  under- 
stands it. 

He  asserts  that  Lombroso's  theory  "is  to  the  effect  that  the  crim- 
inal, as  found  in  prison,  is  a  definite,  anomalous,  human  type:  that  is 
to  say,  he  is  a  specific  product  of  anomalous  biological  conditions.  .  .  . 
Atavistic,  insane,  savage,  degenerate,  all  or  any  of  these  things,  what- 
ever they  may  mean,  the  criminal  may  be;  one  thing  the  criminologists 
will  not  let  him  be:  he  is  not,  he  never  is,  say  the  Lombrosians,  a 
perfectly  normal  human  being,  responsible  for  his  own  actions.  No 
matter  what  is  the  nature  of  the  defect  —  and  even  amongst  Lom- 
broso's immediate  disciples  there  has  been  much  divergence  of  opinion 
in  this  respect  —  the  essential  fact  upon  which  all  are  agreed  is  that 
the  mind  of  the  criminal  is  defective  in  some  way;  that  the  criminal 
is  either  mentally  diseased,  or  so  mentally  anomalous  that  he  ought 
not  to  be  judged  by  the  ordinary  standards  of  morality.  And  this 
doctrine,  they  declare,  flows  naturally  from  the  facts  of  criminal 
anthropology,  i.  e.,  from  the  facts  which  have  been  eKcited  by  direct 
observation  of  criminals  as  found  in  prisons."  (P.  13.)  "The  pre- 
conceived, and,  in  our  opinion,  totally  unfounded,  Lombrosian  notion, 
was  that  criminality  is  a  specific  condition  of  mind  or  soul:  is  a  definite 
state  of  psychical  instability.  And  this  psychical  state,  with  its  out- 
ward and  physical  signs  of  an  inward  and  spiritual  darkness,  this 
mental  and  moral  instability,  underlay,  according  to  the  above  sup- 
position, any  and  every  form  of  lawlessness,  and  potentiality  for 
crime;  and  was  its  only  explanation,  and  its  sole  promotor."  (P.  15.) 


496  APPENDIX   B 

To  any  one  familiar  with  Lombroso's  theory  it  is  apparent  that 
Dr.  Goring  is  grossly  and  inexcusably  misrepresenting  him.  Lombroso 
never  asserted  that  the  criminal  in  prison  always  belongs  to  a  "def- 
inite, anomalous,  human  type,"  and  the  "Lombrosians"  never  assert 
that  the  criminal  is  never  a  "perfectly  normal  human  being."  On  the 
contrary,  towards  the  end  of  his  career  Lombroso  did  not  believe  that 
more  than  forty  per  cent  of  the  criminals  belonged  to  the  type  he 
called  the  "born  criminal,"  while  all  of  the  "Lombrosians"  believe 
that  circumstances  lead  many  normal  individuals  to  commit  crime. 
Whatever  his  mistakes  may  have  been,  Lombroso  never  took  this 
extreme  view.  And  yet  Dr.  Goring,  laboring  under  this  unpardonable 
delusion,  takes  occasion  at  numerous  points  throughout  his  report  to 
criticize  Lombroso  severely  for  this  grotesque  theory  which  he  attrib- 
utes to  him. 

In  passing  I  should,  in  self-defense,  take  note  of  a  gross  misrep- 
resentation of  me  of  which  Dr.  Goring  has  also  been  guilty.  Speaking 
of  books  written  by  Tarnowsky,i  Ferrero,^  and  myself,'  he  says:  — 
"During  the  past  year,  three  books  of  scientific  pretensions  have  been 
published;  one  dedicated  to  Lombroso  himself;  all  three  devoted  to 
the  propagation  of  his  discoveries  and  creed."  (P.  19.)  The  imphca- 
tion  of  this  statement  seems  to  be  that  I  wrote  my  book  tis  a  follower 
and  disciple  of  Lombroso.  It  is  true  that  I  endeavored  in  that  book, 
and  also  more  briefly  in  another  writing,*  to  give  a  sympathetic  ex- 
position of  Lombroso's  work  and  ideas.  But  at  no  point  in  any  one 
of  my  writings  have  I  given  justification  for  the  notion  that  I  am 
a  disciple  of  Lombroso.  On  the  contrary,  most  of  my  book  referred 
to  by  Goring  is  devoted  to  the  propagation  of  ideas  which  did  not 
originate  with  Lombroso,  and  I  have  criticized  the  Lombrosian  theory 
at  many  points.  As  an  illustration  I  will  quote  one  passage  which 
includes  both  criticism  and  appreciation.  "More  than  any  other  man 
he  has  stimulated  the  development  of  the  new  science  of  criminology. 
His  original  and  versatile  genius  and  aggressive  personality  have  led 
in  this  great  movement  towards  the  apphcation  of  the  positive  method 
to  the  problem  of  crime.  As  a  pioneer  in  the  anthropological  study 
of  the  criminal  he  was  bound  to  make  mistakes,  and  his  impetuous 
temperament,  leading  him  sometimes  to  generalizations  drawn  too 
hastily,  has  tended  to  increase  the  number  of  these  mistakes.  On 
account  of  these  mistakes  as  well  as  because  he  has  been  a  pioneer, 

'  Les  femmes  homicides. 

^  Criminal  Men. 

'  The  Principles  of  Anthropology  and  Sociology  in  Their  Relations  to  Crim- 
inal Procedure,  New  York,  1908. 

*  Introduction  to  Lombroso's  Crime,  lis  Causes  atid  its  Remedies,  Boston, 
igxi. 


APPENDIX   B  497 

he  has  suffered  a  great  deal  of  criticism."  ^  This  passage  was  written 
before  Lombroso's  death. 

Goring  has  great  faith  in  the  statistical  method,  and  rejects  all 
other  methods  in  his  investigation.  His  first  inquiry  is  as  to  the 
"aUeged  existence  of  a  'physical  criminal  type.'"  This  is,  of  course, 
directed  towards  overthrowing  the  Lombrosian  theory  of  the  bom 
criminal.  He  has  the  measurements  of  thirty-seven  characters  of  his 
convicts,  including  the  dimensions  of  the  head  and  face,  the  relations 
of  various  parts  of  the  body  to  each  other,  etc.  These  measurements 
he  has  correlated  with  the  crimes  these  convicts  have  committed. 
"It  will  be  seen  that  ten  only  of  the  thirty-seven  characters  have 
correlations  with  nature  of  crime  greater  than  .i,  and  that  the  correla- 
tions of  the  remaining  twenty-seven  are  either  insignificant,  relatively 
to  their  probable  errors,  or  so  small  in  value  as  to  be  legitimately 
ignored  in  such  limited  samples  as  those  we  have  been  examining. 
Of  the  ten  above  .i  in  value,  three  only  are  above  .2,  and  only  one 
above  .3  in  value.  With  the  exception  of  these  ten,  which  will  require 
more  detailed  investigation,  we  may  say  that  these  physical  characters 
have  no  significant  association  with  the  nature  of  the  crime  com- 
mitted." (P.  129.)  After  making  a  comparison  between  criminals  as 
a  class  and  the  non-criminal  public,  he  states  his  final  conclusion;  — 
"From  these  comparisons,  no  evidence  has  emerged  confirming  the 
existence  of  a  physical  criminal  type,  such  as  Lombroso  and  his  disciples 
have  described."  (P.  ly^.) 

Goring  describes  in  the  next  place  the  physique  of  his  criminals.' 
He  has  measurements  and  records  of  height,  weight,  span  of  arms, 
general  health,  physical  constitution,  muscularity,  etc.  He  concludes 
that  his  convicts  are  inferior  in  stature  and  weight,  and  that  there 
are  certain  physical  difi'erences  between  different  types  of  criminals. 
"From  the  above  recorded  differences  in  relation  to  their  probable 
errors,  we  see  that  in  all  three  characters,  violence  and  sexual  offenders 
stand  out  from  others  —  the  former  in  being  more  healthy,  more 
muscular  and  stouter  than  criminals  generally,  and  the  latter  by  their 
lack  of  differentiation  in  these  respects.  On  the  other  hand,  incen- 
diaries and  thieves  are  similarly  less  healthy,  less  muscular,  and  less 
stout  than  criminals  generally;  and  fraudulent  offenders  also  are  defi- 
cient in  health  and  muscularity.  Starting  with  violence,  there  is  a 
progressive  falling  off  in  health  and  strength,  and,  with  one  exception^ 
a  progressively  increasing  degree  of  emaciation  as  we  pass  through 
rape,  fraud,  arson  and  stealing."  (P.  186.)  His  final  conclusion  is 
that  "all  English  criminals,  with  the  exception  of  those  technically 
convicted  of  fraud,  are  markedly  differentiated   from  the  general 

^  The  Principles  of  Anthropology  and  Sociology  in  Their  Relations  to  Critn^ 
inal  Procedure,  p.  24.  -  ^- 


498  '  APPENDIX   B 

population  in  stature  and  body- weight;  in  addition,  ofifenders  con- 
victed of  violence  to  the  person  are  characterised  by  an  average  degree 
of  strength  and  of  constitutional  soundness  considerably  above  the 
average  of  other  criminals,  and  of  the  law-abiding  community;  finally, 
thieves  and  burglars  (who  constitute,  it  must  be  borne  in  mind,  90  per 
cent  of  all  criminals),  and  also  incendiaries,  as  well  as  being  inferior 
in  stature  and  weight,  are  also,  relatively  to  other  criminals  and  the 
population  at  large,  puny  in  their  general  bodily  habit."  (P.  200.) 

He  next  studies  age  as  an  etiological  factor  in  crime.  He  finds 
among  his  convicts  a  tendency  to  begin  their  criminal  careers  early  in 
life,  which  leads  him  to  the  tentative  conclusion  that  "the  majority 
of  habituals  are  first  convicted  during  adolescence  because  a  relative 
predisposition  to  transgress,  or,  it  may  be,  a  relative  incapacity  to 
keep,  the  law,  like  most  human  predispositions,  tends  to  become  man- 
ifest at  the  earliest  opportunity.  .  .  .  Assuming,  then,  the  existence 
of  variability  in  criminal  proclivity  —  assuming  the  existence  of  social 
or  anti-social  predispositions,  variable  amongst  individuals,  but 
possessed  to  some  degree  by  all  people,  it  should  not  be  surprising 
that  more  than  a  half  of  habitual  criminals  give  evidence  of  their  own 
peculiar  anti-social  proclivities  before  the  age  of  25."  (P.  212.)  This 
statement  foreshadows  his  later  conclusion  with  regard  to  the  extent 
to  which  crime  is  determined  by  a  predisposition  to  crime  in  the  crim- 
inal. 

Then  he  takes  up  the  criminal's  vital  statistics  with  regard  to 
health,  disease,  mortality,  and  enumeration.  He  finds  that  with 
respect  to  health  in  general  and  most  diseases,  including  insanity,  the 
convict  compares  favorably  with  the  population  at  large.  "In  the 
main,  this  exhaustive  inquiry  indicates  that  there  is  no  relation  be- 
tween a  healthy  or  delicate  constitution  per  se  and  the  committing  of 
crime;  and  that  the  coefficient  of  correlation  between  these  conditions 
is  .07:  a  value  which  shows  that,  if  anything,  the  criminal  is  healthier 
on  the  whole  than  is  the  law-abiding  subject."  (P.  228.)  But  he  finds 
three  pathological  conditions  prevalent  among  his  criminals,  namely, 
epilepsy,  alcohoHsm,  and  what  he  calls  sexual  profligacy,  by  which  he 
means  venereal  disease.  "The  mortality  statistics  confirm  the  pre- 
vailing belief  that  epilepsy  conduces  to  the  committing  of  crime;  and 
the  intensity  of  this  influence,  measured  on  the  correlation  scale,  is 
given  by  the  fraction  .26.  The  important  part  played  by  alcoholism 
in  the  committing  of  crime  is  illustrated  by  the  relatively  high  value 
of  the  correlation  coefficient  of  criminality  with  alcoholism,  .39,  and 
by  the  increased  mortality  and  prevalency  amongst  prisoners,  rel- 
atively to  the  general  population,  of  diseases  associated  with  this  con- 
dition. Similarly,  the  relation  between  sexual  profligacy  and  crime 
is  statistically  demonstrated  by  the  value  of  the  correlation  coeflScient 


APPENDIX   B  499 

between  criminality  and  syphilis,  .31,  and  also  by  the  increased  prison 
mortality  and  prevalency  of  all  diseases  to  which  some  form  of  vene- 
real disease  is  antecedent."  (P.  229.) 

With  regard  to  the  mortality  of  the  criminal  he  concludes  that 
"the  presumptive  evidence  is  that  the  death-rate  of  criminals  approx- 
imates closely  to  that  of  the  general  population."  (P.  233.)  Then  by 
means  of  a  complicated  statistical  calculation  he  estimates  that  the 
total  population  of  male  offenders,  both  prior  and  subsequent  to  con- 
viction, in  England  and  Wales,  is  3,110,500.  Of  these  1,115,490  are 
prior  to  conviction,  or  eventual  offenders;  and  1,995,010  are  subse- 
quent to  convictions,  or  manifest  offenders.  (P.  234.) 

Goring  now  turns  to  the  mental  traits  of  the  criminal.  It  is  obvious 
that  mental  traits  cannot  be  measured  directly,  so  that  he  depends  in 
most  cases  upon  personal  estimations  of  them  made  by  observers  of 
the  individual  criminals.  First  he  studies  a  number  of  mental  traits 
imder  the  following  heads:  — 

1.  Temperament.  Here  he  classifies  the  degree  of  suspiciousness  of 
the  criminal  under  the  categories  of  suspicious,  trustful  and  medium; 
the  sanguine  as  opposed  to  the  phlegmatic  temperament;  the  con- 
tented as  opposed  to  the  discontented  frames  of  mind;  and  the  de- 
gree of  egotism  under  the  categories  of  egotistic,  sympathetic,  and  be- 
twixt. (P.  238.) 

2.  Temper,  under  the  categories  of  good  or  amiable  or  serene  temper, 
as  opposed  to  bad  temper,  under  which  are  hot  and  violent  forms  and 
sullen  and  violent  forms.  (P.  238.) 

3.  Facility,  under  which  "convicts  are  classified  within  the  three 
categories  of  facile,  obstinate,  and  medium,  according  to  their  tendency 
to  respond  or  to  be  resistant  to  the  influence  of  other  personalities  and 
of  circumstances."  (P.  239.) 

4.  Conduct,  "graduated  by  the  average  number  of  reports  for  bad 
behavior  during  one  year's  sojourn  in  prison."  (P.  239.) 

5.  Suicidal  tendency,  "estimated  from  the  recorded  facts  of  at- 
tempts to  commit  suicide."  (P.  239.) 

6.  Insane  diathesis,  "measured  by  the  fact  that  a  convict  has,  or 
has  not,  been  in  an  asylum  at  some  time  of  his  life."  (P.  239.) 

After  working  out  the  necessary  correlations  he  arrives  at  the  follow- 
ing conclusion  with  respect  to  temperament:  —  "The  only  correlation 
whose  value  has  any  significance  is  the  one  measuring  the  relation 
between  egotism  and  crime,  (crude  correlation  ratio  .23).  Referring 
to  the  means  of  egotism  within  the  several  groups,  we  see  that  the 
value  of  this  coefficient  measures  the  extent  to  which  fraudulent  and 
sexual  offenders  tend,  on  the  average,  to  be  more  egotistic  than  those 
committing  other  types  of  crime.  For  the  rest,  we  conclude  that 
there  is  no  relation  between  the  temperament  of  criminals  and  the 


500  APPENDIX  B 

kind  of  crime  they  commit.  We  see,  however,  that  criminals  are 
highly  differentiated  in  general  intelligence;  and  also  that  the  more 
feeble  their  intelligence  may  be,  the  more  marked  becomes  the  av- 
erage degree  of  melancholic  tendency,  of  discontentment,  and  es- 
pecially of  suspiciousness,  displayed  by  criminals."    (P.  241.) 

With  respect  to  temper,  facility  and  conduct  he  says  that  "in  con- 
junction with  the  other  evidence  produced,  we  conclude  that  criminals 
convicted  of  violent  crimes  are  distinguished  by  hot  and  uncontrolled 
tempers,  and  by  obstinacy  of  purpose,  but  that  other  differences  of 
temper,  will,  and  conduct,  amongst  convicts,  depend  entirely  upon 
the  grade  of  their  general  intelligence."  (P.  244.) 

With  respect  to  suicide  and  insanity  he  says  that  "criminals  con- 
victed of  violence  crimes,  as  well  as  being  distinguished  by  hot  and 
uncontrolled  temper,  and  by  obstinacy  of  will,  are  also  differentiated 
from  other  types  of  convicts  by  increased  suicidal  tendency,  and  by 
an  augmented  proclivity  to  be  eventually  certified  insane;  but  that  in 
other  respects  —  excluding  a  slightly  increased  degree  of  egotism  dis- 
played by  offenders  technically  convicted  of  fraud  —  differences  of 
temperament,  temper,  will,  conduct,  suicidal  tendency,  and  insane 
proclivity,  amongst  convicts,  depend  entirely  upon  their  differentia- 
tion in  general  intelligence."  (P.  245.) 

Because  he  believed  that  differences  in  these  mental  traits  depend 
largely  upon  differences  in  intelligence,  he  studied  the  differences  in 
the  mental  capacity  of  his  criminals.  After  making  an  elaborate 
calculation  of  the  amount  of  mental  defectiveness  in  the  general 
population  and  among  criminals  he  says  that"  against  the .4 5  per  cent, 
of  defectives  in  the  general  population,  the  proportion  of  mentally 
defective  criminals  cannot  be  less  than  10  per  cent.,  and  is  probably  not 
greater  than  20  per  cent."  (P.  255.)  Assuming  that  the  convicted 
felons  form  1.29  per  cent  of  the  general  population  he  calculates  a 
coefficient  of  correlation  between  these  convicts  and  mental  defective- 
ness of  .63.  "It  is  clear  that  the  relationship  between  mental  de- 
fectiveness and  the  committing  of  all  types  of  crime,  with  the  excep- 
tion of  some  kinds  of  fraud,  is  an  extremely  intimate  one.  The 
strength  of  this  bond  transcends  that  of  any  we  have  hitherto  been 
able  to  discover:  and  it  is  evident  that  defective  intelligence  is  one  of 
the  primal  sources  of  crime  in  this  country."  (P.  260.) 

With  respect  to  the  relation  of  this  mental  defectiveness  to  the 
other  constitutional  determinants  of  crime,  he  says  that  "defective 
physique,  extreme  forms  of  alcoholism,  epilepsy,  insanity,  sexual 
profligacy,  and  weak-mindedness  —  these  are  the  constitutional 
conditions,  and  the  only  ones,  which  so  far  have  emerged  as  signif- 
icantly associated  with  the  committing  of  crime  in  this  country." 
(P.  262.)    His  final  conclusion  is  as  follows:  —  "Our  final  conclusion 


APPENDIX  B  501 

is  that  English  criminals  are  selected  by  a  physical  condition,  and  a 
mental  constitution  which  are  independent  of  each  other  —  that  the 
one  significant  physical  association  with  criminality  is  a  generally 
defective  physique;  and  that  the  one  vital  mental  constitutional  fac- 
tor in  the  etiology  of  crime  is  defective  intelligence."  (P.  263.) 

Next  he  takes  up  the  influence  of  the  "force  of  circumstances" 
upon  the  genesis  of  crime.  Here  he  examines  the  following  condi- 
tions:—  nationality;  education;  employment;  alcoholism;  influence 
of  family  life,  including  the  standard  of  living  of  parents,  the  age  of 
the  subjects  at  the  death  of  their  mothers,  the  order  of  the  subject  in 
his  family,  and  the  number  in  the  family  of  the  subject;  and  the  rela- 
tion of  the  first  to  subsequent  convictions  of  convicts,  including  the 
age  of  the  subject  at  first  conviction,  and  the  nature  of  the  subject's 
first  sentence. 

It  would  be  impossible  to  summarize  here  his  lengthy  analysis  of 
these  factors  and  their  degree  of  correlation  with  crime,  which  he  finds 
to  be  very  small.  His  final  conclusion  is  as  follows:  —  "From  the 
general  trend  of  the  results  tabulated  above,  our  interim  conclusion 
is  that,  relatively  to  its  origin  in  the  constitution  of  the  malefactor,  and 
especially  in  his  mentally  defective  constitution,  crime  in  this  coun- 
try is  only  to  a  trifling  extent  (if  to  any)  the  product  of  social  in- 
equality, of  adverse  environment,  or  of  other  manifestations  of  what 
may  be  comprehensively  termed  'the  force  of  circumstances.'" 
(P.  288.)  However,  this  conclusion  is  only  tentative.  "Very  super- 
ficially and  imperfectly  we  have,  in  this  chapter,  touched  upon  a 
subject  of  the  greatest  importance  criminologically;  our  conclusions 
have  no  pretensions  to  finality:  our  hope  is  that  they  may  lead  to  a 
more  thorough  and  representative  statistical  examination  of  a  ques- 
tion so  urgently  awaiting  solution."  (P.  289.) 

After  an  elaborate  investigation  of  the  fertility  of  criminals  he 
comes  to  the  conclusions  that  the  absolute  fertility  of  criminals  to 
the  absolute  fertility  of  the  general  community  is  as  550,653  to  877,852 
(P.  296);  that  criminals  are  a  product  of  the  most  prolific  stocks  in 
the  community;  and  that  habitual  criminals  are  less  than  half  as 
fertile  as  other  criminals,  but  that  this  is  not  due  to  physiological 
sterility  but  to  the  desertion  of  habitual  criminals  by  their  wives. 

The  last  thing  he  investigates  is  the  influence  of  heredity  upon  the 
genesis  of  crime.  The  result  of  this  investigation  is  that  "  the  family 
incidence  of  crime  is  not  fortuitously  distributed,  is  not  entirely  in- 
dependent of  lineage;  that  criminals  do  not  occur  equally  in  all  families 
of  the  general  community,  but  tend  to  be  restricted  to  particular 
stocks  or  sections  of  the  community:  to  those  stocks  tainted  with 
criminal  ancestry.  And  we  have  found  that  the  intensity  of  this 
limitation,  the  intensity  of  this  parental  resemblance  in  criminal 


50?  APPENDIX  B 

propensity,  ranges  between  .45  and  .6."  (P.  364.)  Comparing  this 
conclusion  with  regard  to  heredity  with  the  previous  conclusions  with 
regard  to  defective  physique,  mental  defectiveness,  and  the  influence 
of  environmental  conditions,  he  states  two  general  conclusions;  — ■ 
"The  one  is  that  the  criminal  diathesis,  revealed  by  the  tendency 
to  be  convicted  and  imprisoned  for  crime,  is  inherited  at  much  the 
same  rate  as  are  other  physical  and  mental  qualities  and  pathological 
conditions  in  man.  The  second  is  that  the  influence  of  parental  con- 
tagion, although  varying  somewhat  in  intensity  in  different  conditions, 
is,  on  the  whole,  inconsiderable,  relatively  to  the  influence  of  inher- 
itance, and  of  mental  defectiveness:  which  are  by  far  the  most  signif- 
icant factors  we  have  been  able  to  discover  in  the  etiology  of  crime." 
(P.  368.) 

It  would  be  easy  to  criticize  severely  Goring's  methods  and  con- 
clusions in  various  respects.  For  example,  he  carries  the  statistical 
method  too  far  in  his  attempt  to  measure  all  of  the  traits  of  the 
criminal  by  means  of  it,  inasmuch  as  many  traits,  such  as  most  of  the 
mental  traits,  cannot  be  studied  by  a  quantitative  method.  His 
classification  of  the  mental  traits  of  criminals  studied  by  him  is  very 
crude  and  betokens  an  ignorance  of  psychology  on  his  part.  He  does 
not  appear  to  have  given  enough  weight  to  the  fact  that  the  criminals 
studied  by  him,  as  convicts  incarcerated  in  a  prison,  necessarily 
formed  a  selected  group  of  criminals.  But  I  have  not  the  space  for 
extended  criticism,  and,  in  any  case,  this  has  already  been  done  at 
great  length  by  others  of  his  critics.^ 

With  regard  to  the  main  object  of  his  report,  namely,  his  polemical 
attack  upon  Lombroso,  (which  is  out  of  place  in  any  scientific  treatise), 
it  is  obvious  from  the  brief  citations  which  I  have  presented  that  his 
conclusions  are  almost  entirely  self-contradictory.  While  he  has  fur- 
nished some  facts  to  disprove  the  existence  of  an  anthropological 
criminal  type,  (which,  indeed,  needs  no  disproof),  he  has  proved  him- 
self more  Lombrosian  than  Lombroso  himself  in  his  emphasis  upon  the 
hereditary  factors  for  criminality  in  the  form  of  a  "criminal  diathesis," 
and  in  his  unwarranted  depreciation  of  the  influence  of  the  "force  of 
circumstances"  or  environment  as  a  cause  of  crime. 

'  For  example,  see  a  symposium  upon  Goring's  report  in  two  numbers  of 
Volume  V  of  the  Jour,  of  the  Am.  Institute  of  Crim.  Law  and  Criminology, 
Quly  and  Sept.,  1914),  including  the  following  articles:  Gina  Lombroso- 
Ferrero,  The  Results  of  an  Official  Investigation  in  England,  pp.  207-223; 
E.  Ferri,  The  Present  Movement  in  Criminal  Anthropology,  pp.  224-227;  S. 
de  Sanctis,  An  Investigation  of  English  Convicts  and  Criminal  Anthropology, 
pp.  228-240;  W.  A.  White,  Method  and  Motive  from  the  Psychiatric  Viewpoint, 
pp.  348-352;  H.  D.  Newkirk,  The  Sociologic  Problem,  pp.  353-357;  P.  E. 
Bowers,  Criminal  Anthropology,  pp.  358-363. 


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i 


INDEX 


Abbott,  E.,  219 

Adam,  H.  L.,  246,  354 

Adams,  B.,  485-6 

Adolescence,  177,  208-9 

Agent  provocateur,  466-7 

Albanel,  L.,  219 

Alcoholism  (see  Intemperance) 

Altruism,  464 

Amentia,  57-8,  129,  131,  135-?,  i47. 
152,  156-70,  1 7 1-2 
extent  of  criminal,  163-70 

von  Amira,  K.,  12 

Ammon,  O.,  138 

Anarchism,  459-60,  465 

Anatomy,  4,  5,  127 

Anderson,  V.  V.,  173-4 

Andrews,  W.,  358 

Animals,  punishment  of,  10-12 
equivalents  or  analogues  of  crime 

among,  7-8 
equivalents  or  analogues  of  pun- 
ishment among,  8-9 

Animism,  15 

Anthropology,  4,  371-2 
criminal,  5 

Anthropomorphism,  11 

Appeal,  right  of,  283 

Arboux,  J.,  187 

Aristotle,  118 

Art,  1 16-19 

Aschaffenburg,  G.,  46,  47,  55,  82, 
108,  141,  193,  215-16,  220,  225; 
238 

Assassination,  political,  454,  459, 
469 

Assessor,  324 

Asylum,  criminal,  445 

Atavism,  129,  130, 135-6, 139,  207-8 

Aub:  ,  P.,  179 


B 

Bagehot,  W.,  456 

Bail,  352 

Baldwin,  R.  N.,  408 

Banishment,  358,  359-60 

Barnett,  J.  D.,  333 

Barrows,  S.  J.,  267 

Beach,  C.  F.,  256 

Bebel,  A.,  467 

Beccaria,  C,  280,  363 

Benedikt,  M.,  181 

Berkman,  A.,  437,  442,  480 

Berthomieu,  C.,  478 

Best,  W.  M.,  289,  326 

Binet,  A.,  161,  166,  168,  169 

Binet-Sangl6,  C,  179 

Birnbaum,  K.,  181 

Birth   control,   restriction  of,   482, 

489-90 
Blackmail,  58,  275,  346-7,  348 
Blackstone,  W.,  302,  472 
Blasphemy,  474-7 
Bodington,  O.  E.,  307 
Bolton,  J.  S.,  147,  174 
Bonger,  W.,  71,  78,  80,  81,  82,  85, 

86,  102,  107,  108,  213,  216,  225, 

237,  243,  493 
Borchard,  E.  M.,  353 
Boumet,  A.,  54 
Bowers,  P.  E.,  167-8,  502 
Breckinridge,  S.  P.,  219 
Brehon  law,  the,  259 
Brewer,  D.  J.,  472,  474 
Bridges,  J.  W.,  162,  169 
Bronner,  A.  F.,  168,  169 
Brooks,  J.  G.,  460 
Brooks,  S.,  349 
Browning,  R.,  303 
Buckle,  H.  T.,  43 
Burglary,  58 


515 


5i6 


INDEX 


Burns,  W.  J.,  481 
Bury,  J.  B.,  457,  477 
Byers,  J.  P.,  205 
Byrnes,  T.,  200 


Capital    punishment     (see    Death 

penalty) 
Carson,  H.  L.,  260 
Castration,  415 
Catholicism,  108-9,  275-7 
Cell,  prison,  421,  423-4 
Chamberlain,  H.  S.,  138 
Channing,  W.,  463 
Cherry,  R.  R.,  256,  257,  258,  259 
Childs,  H.  G.,  161 
Christianity,    23,   33,    114-1S,   369. 

470-4,  476-8 
Church,  A.,  175 
Civil  justice,  free,  314-15 
Climate,  4,  44-5,  52-3,  140 
Clouston,  T.  S.,  175 
Colajanni,  N.,  102,  141,  246 
Cole,  R.  H.,  17s 
Collie,  J.,  434 
Colony,  penal,  445-6 
Composition  of  wrongs,  252,  260-1 
Compurgation,  285 
Conduct,  3 

criminal,  5 

normal  and  abnormal,  6 
Conjugal  condition,  237-40 
Conscription,  military,  478-9,  482 
Conservatism,  461-2,  483,  486 
Conti,  U.,  443 
Contract  labor,  429-32 
Cook,  A.,  442 
Cooper,  J.  W.  A.,  178 
Come,  A.,  493 
Coroner,  294-5,  317 
Corporal  punishment,  447-8 
Corre,  A.,  48,  123,  182,  185,  246 
Courtesy,  223-4,  487 
Courts,  the,  97-8,  484-5 
Crime,  3 

beginnings  of,  13 

definition  of,  32 

equivalents  or  analogues  of,  7-8 


Crime — continued. 

evolution  of,  5 

extent  of,  12 1-4,  489-90 

nature  of,  5 

prevention  of,  364-5,  489-92 

study  of,  3-6 
Crimes,  against  property,  44-5,  69- 

71,  75,  77-9,  490,  493-4 
against  the  person,  44-5,  79,  490 
classification  of,  264-70 
common,  453-6 

evolutive,  455-7,  467-8,  469-88 
political,    80,    372,    418,    453-7, 

467-9,  487 
sexual,  46,  79 
Criminality,  extent  of,  202-6 
rural,  55-61 
urban,  55-61,  489 
Criminals,  36-9 

born,  39,  128-31,  149-50,  156-7, 

195-6 
by  passion,  188-9,  191,  ^97,  215 
classification  of,  186-98 
evolutive,  198,  201,  205,  215,  446, 

461-6 
feebleminded    (aments),    156-70, 

199,  205,  215,  492 
habitual,  190-1,  196 
insane,  188,  196-7,  199,  205,  215 
occasional,  84,  86,  155,  185,  189- 

90,  191,  197,  201,  205-6,  215 
political,    150,    191-2,    201,    205, 

215,  446,  461-6 
professional,  84-6,  154,  185,  192, 

196, 199-200,  205-6,  215 
psychopathic,    171-85,    199,    205, 
215,492 
Criminology,  branches  of,  5 

study  of,  3-6,  343 
Crofton,  W.,  435 
Crothers,  T.  D.,  178 
Custom,  14-15,  27,  469 

D 

Dade,  W.  H.,  446 
Darwin,  C,  376 

Death  penalty,  the,  358,  359,  367, 
410-20,  482 


INDEX 


517 


Debt,  punishment  for,  366 
Defense,  private,  301-5 

public,  301-15 
Dementia,  137,  147,  148,  173-S 
Democracy,  loi,   124,  333,  336-7, 

390,  398,  458,  474,   480,  484, 

487-8 
Demography,  4,  54-66 
Desmaze,  C,  359 
Despotism,   30,   33-4,    253-4,    262, 

367,  378,  390,  457 
Detective  agencies,  467-8 
Detention,  365,  422,  442-3 
Determinism,  379-80 
Deterrence,  359,  411-14 
Dexter,  E.  G.,  48-51,  52 
Dostoievsky,  F.  M.,  118 
Drahms,  A.,  187 
Dubuisson,  P.,  178 
Du  Cane,  E.  F.,  358,  361,  410 
Duprat,  G.  L.,  209,  216,  377 
Durkheim,  E.,  254,  269,  368,  386 


Earle,  T.  W.,  323 

Economic  legislation,  480-1 

Economics,  4 

Education,  220-6,  432,  487 

Ellis,  H.,  31,  181,  182,  192,  242 

Ellwood,  C.  A.,  122,  187,  442 

Embezzlement,  59 

Emotion  (see  Feeling) 

English  common  law,  the,  255,  258- 

64,  282,  283,  471-2 
Epilepsy,  178-9 
Ethics,  6 
Eugenics,  492 
Evans,  E.  P.,  9,  10,  12 
Evidence,  285-300,  313,  325 

direct,  287 

hearsay,  288,  325 

indirect  (circumstantial),  287 
Expert  testimony,  291-2,  293-4 
Ex  post  facto  legislation,  390-1 
Extenuating  circumstances,  391 


Family,  219-20,  244 
Feeblemindedness  (see  Amentia) 


Feeling,  132,  143-S.  151,  158,  357, 

374-6,  381-4,  386 
Felony,  265-6 
Fenton,  F.,  120 
Fernald,  G.  M.,  162 
Ferrero,  G.,  246 
Ferrero,  G.  L.,  496,  502 
Ferri,  E.,  46,  96,  117,  123,  140,  186, 

190-2,  303,  313,  455,  502 
Fining,  360 

Finkelnburg,  K.,  202,  203 
Flexner,  B.,  407 
Flynt,  J.,  336,  345 
Foley,  J.  P.,  472 
Forgery,  59 
Fomasari  di  Verce,  E.,  75,  77,  78, 

80 
Fosdick,  R.  B.,  337,  344,  349-50 
Fraud,  59,  458,  483 
Frazer,  J.  G.,  16,  17-18,  22,  23,  24, 

29,  253 
Freedom,  456-61,  492 

of  action,  456-7 

of  religion,  470-9 
•  of  speech,  456-7,  458,  460-1,  483 

of  thought,  456-7 

restrictions  upon,  457-61,  470-82 
Free  will,  378-80,  385,  491 
Freund,  E.,  269,  335 
Frick,  H.  C,  480 
Fry,  E.,  362 
Fuld,  L.  F.,  343-4 


Gammon,  H.  R.  P.,  354 

Garofalo,  R.,  96,  123,  193-5,  225, 

322 
Gaynor,  W.  J.,  349 
Gemmill,  W.  N.,  429 
Genil-Perrin,  G.,  464 
Ginnell,  L.,  259 
Ginsberg,  M.,  273 
Glueck,  B.,  176 
de  Gobineau,  J.  A.,  138 
Goddard,  H.  H.,  159,  161,  165-7, 

169 
Goebel,  Jr.,  J.,  122 
Goldman,  M.  C.,  313 


Si8 


INDEX 


Goodnow,  F.  J.,  347 

Goring,  C,  157,  163-S,  202-3,  49S- 

502 
Government,  29,  92-8,  251 
Granier,  C,  246 
de  la  Grasserie,  R.,  269 
Griffith,  G.,  446 
Guyau,  J.  M.,  117,  377 

H 

Habeas  corpus,  writ  of,  352 

Habit,  27,  143,  148-9,  178 

Haines,  C.  G.,  33,2, 

Haines,  T.  H.,  168-9 

Hale,  M.,  472 

Hall,  A.  C,  122 

Hardwick,  R.  S.,  162 

Hassler,  I.,  474 

Hawthorne,  J.,  442 

Healy,  M.  T.,  180 

Healy,  W.,  156,  157,  162,  167,  169, 

171-2,  173,  17s,  176,  177,  180, 

182,  199,  200 
Helbing,  F.,  359 
Henderson,  C.  R.,  424 
Henry  II,  316-7 
Hickson,  W.  J.,  167 
History,  4 
Hobhouse,  L.  T.,  254,  263-4,  273, 

374 
Hodder,  A.,  349 
Hoffman,  F.  L.,  351 
Holdsworth,  W.  S.,  260,  261 
Hollingworth,  L.  S.,  243 
Holyoake,  G.  J.,  467 
Homicide,  extent  of,  350-1 
Howard,  J.,  362,  363 
Huey,  E.  B.,  170 
Humanitarianism,  11 2-13,  124,  370- 

2,  416-17,  419 
Hunter,  R.,  467 
Hysteria,  179 


Identification  of  criminals,  340 
Illiteracy,  225-6 
Immigration,  227-9 


Imprisonment,  229-30,  361-3,  414, 

421-40 
Incest,  21 

Incitement  to  crime,  458,  483 
Indemnification,  304,  353 
Indictment,  282 
Individual,  the,  5,  25-6,  30 
Individualization     of     punishment 

(see  Punishment) 
Infanticide,  59 
Inquisition,  the,  286,  369-70 
Insanity,  129,  131,  137,  147-8,  151- 

2,  174-6 
Instinct,  38,   13 1-2,   142-3,   150-1, 

157-8,  195-6,  357,  374-6,  381-4 
Intelligence,     132-3,     145-6,     151, 

156-8,  376,  382 
Intemperance,  89,  136,  137,  148 
Ives,  G.,  358,  361 


Jail,  422,  443-4 
Janet,  P.,  175 
Jarno,  E.,  267 
Jefferson,  T.,  472 
Jesus  Christ,  lo-ii,  471,  476 
Joly,  H.,  90 

Judaism,  22-3,  32-3,  108 
Judge,   311-12,    319-20,   321,   322, 
327-34,  354,  402,  407 

control  of,  332-4,  485 

training  of,  311-12,  329-32 
Jurisprudence,       comparative,  4 

criminal,  5 
Juror,  317-21 
Jury,  286-7,  316-27,  328,  334 

grand,  282,  317 

petit,  317-27 
Juvenile  court,  331,  400-7 


van  Kan,  J.,  73,  123 
Kauffmann,  M.,  181 
Keedy,  E.  R.,  303 
Keeler,  C.  O.,  441 
Kellor,  F.  A.,  182,  246 
Kenny,  C.  S.,  266 


INDEX 


519 


Kent,  J.,  472 
King's  peace,  the,  261-2 
Kocourek,  A.,  254 
Kovalevsky,  P.,  181 
Kraepelin,  E.,  175 
Krafft-Ebing,  R.,  175 
Kraus,  A.,  181 
Kropx)tkin,  P.,  467 
Kuhlman,  F.,  163 


Lacassagne,  A.,  8,  69,  187,  411 

Laidler,  H.  W.,  338 

de  Lanessan,  J.  L.,  in,  112,  222,  377 

Laschi,  R.,  188,  463 

Latouche,  P.,  465 

Laurent,  E.,  84,  109,  180,  182-4 

Law,  4,  29,  97-8,  251 

civil,  24,  98,  252,  255-6,  257,  271, 

360,  366 
criminal,  98,  251-64,  271 

Lea,  H.  C,  286,  370 

L6ale,  H.,  245-6 

Lecky,  W.  E.  H.,  374 

Lee,  W.  L.  M.,  335 

Leeson,  C,  408 

Leuba,  J.  H.,  114 

Lewis,  B.  G.,  436 

Lex  talionis,  251,  260,  364,  418 

Libel,  458,  483 

von  Liszt,  P.,  267 

Lombroso,  C,  10,  45,  54,  59,  loi, 
109,  III,  112,  128-31,  139,  152, 
156,  172,  181,  187-90,  191,  192, 
193,  207-8,  226,  231,  246,  303, 
463,  464,  495-7,  502 

Lowrie,  D.,  442 

Lydston,  G.  F.,  434 

Lyon,  F.  E.,  411 

M 

McAdoo,  W.,  354 
McConnell,  R.  M.,  380 
Macdonald,  C.  F.,  463 
McNamara,  J.  B.,  480 
McNamara,  J.  J.,  480 
Maconochie,  A.,  435 


Magic,  12,  15-18,  20-1,  28-9,  365-6, 

368 
Maine,  H.  S.,  254,  257-8 
Maitland,  F.  W.,  254,  260,  263,  265 
Makarewicz,  J.,  357,  358 
Malingering,  434 
Manouvrier,  L.,  130 
Mansfield,  Lord,  472 
Marro,  A.,  182 
Martyn,  F.,  442 
Maudsley,  H.,  187 
Maurer,  C.  A.,  338 
Maxwell,  J.,  456 
Mayo,  K.,  338 
Mayo-Smith,  R.,  45,  56,  240 
von  Mayr,  G.,  493 
Medical  jurisprudence,  290-3,  295 
Mental  conflicts,  180 
Mental  repressions,  180 
Mental  tests,  16 1-3 
Meteorology,  4,  44-53 
Meyer,  A.,  175,  179 
Militarism,  99-105 
Militia,  338-9 

Mind,  the,  5,  13 1-5,  157-8,  181-4 
Misdemeanor,  266 
Molineaux,  R.  B.,  409 
Mommsen,  Th.,  296 
Montague,  H.,  243 
Montesquieu,  C.  L.,  280,  363 
Moral  ideas,  9,  14,  18-19,  111-12, 

154,  373,  377,  489 
Morris,  W.  A.,  335 
Morrison,  W.  D.,  216,  240 
Mutilation,  358,  359 

'      N 
Nervous  system,  the,  5,  13 1-8 
Neurasthenia,  179 
Neuroses,  the,  137,  148,  178-9 
Newkirk,  H.  D.,  502 
Nitsche,  P.,  439 

O 

Oath,  285,  295-7 
Oberndorf,  C.  P.,  173 
Obscenity,  482 
Occupations,  81-4 


520 


INDEX 


von  Oettingen,  A.,  55 
Oldfield,  J.,  411 
d'Olivecrona,  K.,  411 
Oppenheimer,  H.,  18,  19,  20,  22,  23, 

254,  358 
Ordeal,  285-6,  365 
Ordway,  E.  B.,  223-4 
Osborne,  T.  M.,  436,  440 
Ottolenghi,  S.,  343 


Paranoia,  176 

Pardon,  413 

Paresis,  175-6 

Parker,  A.  J.,  266 

Parker,  G.  H.,  127 

Parmelee,  Maurice,  65,  88,  89,  90, 
102,  104,  112,  116,  128,  129, 
131,  140,  142,  144,  145-6,  170, 
218,  219,  220,  264,  303,  304, 
340,  370,  379,  384,  387,  417, 
482,  496-7 

Parole,  446-7 

Parsons,  P.  A.,  193 

Paterson,  D.  G.,  169 

Patterson,  J.,  475 

Paul,  1 14-15 

Penal  code,  254-6 

Penal   labor,    360,   421-2,   427-32, 

447 
Penology,  5 
Pepler,  D.,  408 
Perrier,  C.,  109 
Peterson,  F.,  175 
Phelps,  E.  B.,  120 
Phrenology,  pseudo-science  of,  4 
Physiognomy,  pseudo-science  of,  4 
Physiology,  4,  5,  128 
Pickpocketing,  53,  58,  196 
Pike,  L.  O.,  260,  336,  358,  410 
Pintner,  R.,  169 
Plants,  10 

Plea  of  guilty,  307-9 
Poetic  penalties,  364-5,  418    • 
Poisoning,  23 
Poletti,  123,  124 
Police,  the,   55-6,  60,  97,  335-54, 

466-7 


Police — continued. 

administration  of,  336-9 

corruption  of,  344-50 

functions  of,  335-6,  340-1 

organization  of,  336-9 

training  of,  341-3 
Politics,  4 

Pollock,  F.,  260,  263,  265 
Population,  4,  54-5,  61,  64-6,  482, 

489-90 
Posse  comitatus,  335 
Poverty,  63-4,  80-1,  83-4,  88-91, 

217-18,  490-1,  492 
Preliminary  detention,  352-3 
Prescott,  W.  H.,  303 
Press,  the,  1 19-21 
Presumption  of  innocence,  283,  289 
Prevention  of  crime,  364-5,  489-92 
Prices,  71-4,  76,  104,  490,  493-4 
Prince,  Morton,  254 
Prins,  A.,  443 
Prison,  421-40,  441-7 

administration,  424-5 

discipline,  425,  433-6 

labor,  427-32 

marking  system,  435 

psychosis,  439 

reception  and  observation,  444 

self-government,  435-6 

sex  problems,  437-8 

type,  439-40 
Proal,  L.,  453 
Probation,  400-4 

Probation  officer,  306-7,  401,  402-3 
Procedure,  criminal,  272-84 

of  accusation,  273-5,  279-81,  327 

of  investigation,   275-8,   279-81, 

327 

reform  of,  281-4,  305-7,  420 
Profanity  (see  Blasphemy) 
Proof,  285-6 

burden  of,  289 
Prosecution,  public,  280,  301-4,  327 
Prostitution,  246-8 
Protestantism,  109 
Provisional  liberation,  352 
Psychasthenia,  179 
Psychiatry,  4,  5 


INDEX 


s« 


Psychology,  4,  5 

criminal,  5 

of  testimony,  297-300 
Public  opinion,  9,  27-8 
Punishment,  357-72 

equivalents  or  analogues  of,  8-9 

forms  of,  359-65 

individualization  of,  284,  309-10, 

334,  387-8,  389-409,  414-1S 
objects  of,  358-9 

Q 

Quinton,  R.  F.,  362 

R 

Race,  138-41 
Radicalism,  461-2 
Recreation,  63,  226-7,  432-3 
Reformation,  359 
Reformatory,  422,  428,  445 
Reform  school,  422,  445 
Regis,  E.,  463 
Rehabilitation,  408 
Religion,  12,   15-18,   28,  30,  32-3, 
106-15,  253,  296,  368,  432,  470- 

9 
Render,  W.  H.,  362 
Responsibility,  373-88,  475 
penal,  290-1,  365,  378-80,  384-8, 

40475 
Restitution,  359,  360,  404,  448-9 
Rigby,  L.  M.,  219 
Riis,  J.  A.,  229 
Robertson,  J.  M.,  457 
Robinson,  L.  N.,  202,  444 
Robinson,  W.  C,  269,  474 
Roman  law,  the,  255,  256-8,  264, 

275,  296 
Romilly,  S.,  362 
Ross,  E.  A.,  27,  112,  121 
Rossy,  C.  S.,  169 
Russell,  C.  E.  B.,  219 
de  Ryckere,  R.,  83 


Sabbatarian  laws,  477-8 
Sacrilege,  21 
Salt,  H.  S.,  448 


de  Sanctis,  S.,  162,  502 
Schofield,  H.,  485 
Schroeder,  T.,  460,  482-3 
Science,  59-60,  97,  113-16,  371  ..  : 
Seasons,  the,  4,  45-8,  69-71 
Sedition,  459 
Seebohm,  P.,  252,  254 
Seebohm,  H.  E.,  252 
Sentence,  indefinite,  397-400 
indeterminate,  284,  397,  398 
revision  of,  284,  331,  408-9 
suspensioij  of,  400-4 
Semicoli,  E.,  465 
Servier,  415 

Sex,  22,  119,  180,  437-8,  482 
Sex  differences,  240-3 
Shaftesbury,  A.,  386 
Shame,  punishment  by,  360-1 
Sherlock,  E.  B.,  158-9 
Shipley,  M.,  413 
Sighele,  S.,  121,  179,  180 
Simon,  T.,  161,  168,  169 
Slander,  458,  476,  483 
Social  control,  5-6,  25-39,  251,  263, 

373,377-8,492 
Social   progress,    105,    122-4,    4SS> 

469-70,  483,  484-90,  492 
Society,  5 
Sociology,  4 
criminal,  5 
Solitary  confinement,  425-6 
Sommer,  R.,  181 
Spalding,  W.  F.,  336 
Spaulding,  E.  R.,  i68,  169 
Speech, 9 
Spencer,  H.,  448 
Spitzka,  E.  A.,  419 
Spitzka,  E.  C,  463 
Standard  of  living,  the,  90,  491 
State,  the,  29,  251 
Statistics,  4-5,  97 
Steinmetz,  S.  R.,  19 
Stekel,  W.,  178 
Stephen,  J.  F.,  256,  257,  260,  268, 

322,  358,  386,  477 
Sterilization,  449 
Struggle   for  existence,   the,    25-6, 

63-4,  67-8,  367,  376-7,  489 


522 


INDEX 


Suggestibility,  179-80 
Suicide,  123,  481-2 
Sumner,  W.  G.,  27 
Sumptuary  laws,  34,  457,  479 
Sutherland,  A.,  375 
Sutherland,  J.  F.,  200 


Taboo,  24,  32 
Tanzi,  E.,  175 
Tarde,  G.,  75,  85,  99-100,  123,  179, 

200-1 
Tarnowski,  E.,  466,  494 
Tamowsky,  P.,  246,  496 
Taxes,  103-4 
Terman,  L.  M.,  161 
Teulet,  A.  F.,  267 
Theater,  227 
Thomas,  W.  I.,  242 
Topography,  4,  43 
Tort,  24,  255,  256,  271,  360 
Torture,  286,  359,  365,  369 
Trade  cycle,   the,   71,   75,   87,  91, 

490 
Transportation,  363-4 
Treason,  20,  265,  419,  454,  459 
Tredgold,  A.  F.,  137,  147,  152,  159- 

60,  161,  165 
Trespass,  266 


Unemployment,  53,  490 

U.  S.  Census,  78,  204,  210,  212,  232 

U.  S.  Constitution,  431-2,  471,  473- 

4,  484-S 
U.  S.  Immigration  Commission,  228 


Vacher  de  Lapouge,  C,  138 
Vallon,  C,  464 


Vengeance,    251-2,    255,    274,   359, 

384,  385-6,  403-4,  418 
Viaud,  J.,  418 

Vice,  34-5,  62-4,  97,  117,  345-9 
Vizetelly,  E.  A.,  465 
Voltaire,  F.  M.  A.,  363 

W 

Wager  of  battle,  285 

Wager  of  Law,  285 

Wages,  71-3,  490 

Wake,  C.  S.,  18,  374 

Wallin,  J.  E.  W.,  170 

Wallstein,  L.  M.,  295 

War,  99-105,  366,  417,  419,  454,  459 

Wealth,  63-4,  80-1,  91,  490 

Weather,  the,  4,  48-51,  52-3 

Webster,  H.,  24,  478 

Westermarck,  E.,   10,   14,   21,   254, 

358,  3.67-8,  374,  375,  386,  478 
Wheeler,  G.  C,  29,  273 
Whipple,  G.  M.,  170 
White,  W.  A.,  439,  502 
Whitin,  E.  S.,  429,  430,  431 
Whitlock,  B.,  349 
Wigmore,  J.  H.,  254 
William  II,  254 
Williams,  J.  H.,  168 
Wilmanns,  K.,  439 
Wines,  F.  H.,  359,  361 
Workhouse,  443-4 
Wulffen,  E.,  181 


Yerkes,  R.  M.,  162,  169 

Z 

Zenker,  E.,  465 
Zoccoli,  E.,  465 
ZoSlogy,  4 


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Mr.  Parmelee  has  undertaken,  in  this  interesting  book,  to 
make  available  for  practical  use  some  of  the  results  obtained  by 
European  students  of  criminology,  whose  methods  are  far  in 
advance  of  those  in  this  country.  The  fallacy  of  considering 
the  moral  responsibility  of  the  offender  as  the  test  of  criminality 
instead  of  the  dangerousness  of  the  criminal  to  society,  is  shown 
in  a  straightforward  treatment  of  the  present  methods  of  crimi- 
nal procedure,  their  weakness  and  abuses.  His  reasons  for  the 
abolishment  of  obsolete  methods  of  examination  and  trial  by  in- 
competent authorities  ;  for  the  appointment  of  specially  trained 
judges  and  examiners,  and  the  necessity  for  scientific  study  of 
criminal  procedure,  are  clear,  convincing,  and  enlightening. 
The  relations  of  heredity  and  environment,  the  necessity  of  in- 
dividual treatment  with  the  view  of  reform  wherever  possible ; 
the  suspension  of  sentence  and  the  probation  system ;  methods 
of  repressing  crime,  and  the  miscarriage  of  justice  through  the 
technicalities  of  the  courts,  are  subjects  that  are  of  vital  interest 
to  every  reader. 

Mr.  Parmelee  has  drawn  a  vivid  though  unbiased  picture 
which  will  be  a  revelation  to  the  man  who  would  know,  and  he 
has  forcefully  outlined  the  new  methods  necessary  for  the  im- 
provement of  our  present  system. 

"  The  discussion  is  in  every  way  strong  and  clear,  and  de- 
serves the  careful  study  of  all  intelligent  citizens." —  TAe  Dial. 


THE  MACMILLAN  COMPANY 

Pablishtrs  64-66  Fifth  Ayenue  New  York 


Poverty  and  Social  Progress 


By  MAURICE  PARMELEE,   Ph.D. 

Author  of  "  The  Science  of  Human  Behavior  " 


Cloth,  %i.go 


The  author  has  made  a  comprehensive  survey  of  the  problems 
of  poverty  which  shows  the  one-sided  character  of  many  of  the 
explanations  of  its  causation,  and  which  will  at  least  furnish  the 
starting  point  for  an  effective  program  of  prevention. 

In  a  brief  introduction  are  discussed  the  organization  of 
society  and  pathological  social  conditions.  The  second  part  is 
devoted  to  an  extended  discussion  of  the  causes  and  conditions 
of  poverty,  in  which  the  author  has,  by  extensiveness  of  treat- 
ment, placed  the  emphasis  on  the  two  fundamental  economic 
problems,  namely,  those  of  production  and  the  distribution  of 
wealth.  Three  chapters  are  devoted  to  a  discussion  of  the 
biological  factors  in  the  causation  of  poverty.  Readers  not  in- 
terested in  this  aspect  of  the  subject  may  omit  these  chapters, 
however,  without  being  inconvenienced  in  reading  the  remainder 
of  the  book. 

Part  III  describes  the  Remedial  and  Preventive  Meas- 
ures and  includes  chapters  on:  The  Modern  Humanitarian 
Movement;  The  Nature  of  Philanthropy  both  Private  and 
Public;  Dependents  and  Defectives ;  Eugenic  Measures;  Thrift; 
Social  Insurance  ;  The  Raising  of  Wages  and  the  Regulation  of 
Labor  Supply ;  The  Productiveness  of  Society ;  The  Industrial 
Democracy. 

The  book  is  suitable  for  use  as  a  text-book  for  college  and 
university  courses  on  charities,  poverty,  pauperism,  dependency 
and  social  pathology.  It  will  also  be  useful  to  persons  who  are 
interested  in  these  important  social  questions. 


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PublisherB  64-66  Fifth  Avenue  New  Tork 


Theories  of  Social  Progress 

*By  ARTHUR  J.  TODD 
Professor  of  Sociology  in  the  University  of  Minnesota 

A  critical  study  of  the  attempts  to  formulate  the  conditions  of 
human  advance.  This  volume  attempts  to  bring  together  the 
most  important  contributions  of  English,  American,  French, 
German,  Italian  and  Russian  writers  to  the  literature  of  social 
progress.  But  it  is  more  than  a  mere  digest;  it  is  a  critical  anal- 
ysis and  an  evaluation.  The  outline  of  this  work  includes  five 
chapters  on  the  basis  of  progress  in  human  nature;  two  on  the 
idea  of  progress  as  a  scientific  concept,  and  tests  or  criteria  for 
recognizing  progress;  seven  on  the  materialistic  interpretation 
of  progress;  five  on  the  biological  interpretation  (including 
eugenics,  race  conflict,  war,  and  peaceful  group  contacts). 
Considerable  space  is  given  also  to  a  discussion  of  the  role  of 
property,  government,  law,  public  opinion,  leadership,  art  and 
religion  in  human  advance.  The  educational  and  political 
implications  of  a  sound  theory  of  progress  receive  careful  con- 
sideration. 


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Publishers         64-66  Fifth  Avenue         New  York 


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